유리한 신(新) 조건 우선의 원칙 (A study on principle of applying a new favorable condition by priority)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 78호 / 105 ~ 130페이지
· 저자명 : 김성진

초록

It is considered that the principle of applying a favorable condition by priority is for the case when the lower laws established later are more advantageous to the workers compared to the existing upper norms, not for the case when the existing lower laws are more advantageous to the workers compared to the upper laws established later. This suggestion is based on the following facts: the text structure of Article 4, Paragraph 3 of the Collective Agreement Act of Germany, which is the basis for acknowledging the principle of applying a favorable condition, and the meaning of collective agreements in Germany functioning as the lowest law suggest that the Korean law do not have to follow the German case; in perspective of the lex posterior principle, employment rules that have been changed against workers have more legitimacy than existing labor contract in advantageous of workers, in terms of uniformity of the legal system, possibility that the law will change against the worker, and right to change of worker group; the Supreme Court acknowledged the legal normativeness of the unfavorable modification of employment rules, while regarding the process of unfavorable modification of employment rules as the realization of the principle of equality determination of working conditions.
Accordingly, the Supreme Court's ruling, based on the principle of applying a favorable condition by priority, that the existing favorable labor contract should not be replaced by unfavorably changed one even if such change was legal should be corrected. Although the intention of the Supreme Court's such ruling was to protect individual workers from employment rules set unilaterally by employers, such protection should be addressed through a stronger application of the principle of equality decision of working conditions, the setting inherent limits for unfavorable changes of employment rule, or legislation that allows joint decisions between labor and management in determining working conditions.
Considering these points together, the principle of applying a favorable condition by priority is, under Korean labor law system, just a product of the combination of the necessity of worker protection and the lex posterior principle, and it is unreasonable, under law theory, to consider it as a general principle of labor law

영어초록

It is considered that the principle of applying a favorable condition by priority is for the case when the lower laws established later are more advantageous to the workers compared to the existing upper norms, not for the case when the existing lower laws are more advantageous to the workers compared to the upper laws established later. This suggestion is based on the following facts: the text structure of Article 4, Paragraph 3 of the Collective Agreement Act of Germany, which is the basis for acknowledging the principle of applying a favorable condition, and the meaning of collective agreements in Germany functioning as the lowest law suggest that the Korean law do not have to follow the German case; in perspective of the lex posterior principle, employment rules that have been changed against workers have more legitimacy than existing labor contract in advantageous of workers, in terms of uniformity of the legal system, possibility that the law will change against the worker, and right to change of worker group; the Supreme Court acknowledged the legal normativeness of the unfavorable modification of employment rules, while regarding the process of unfavorable modification of employment rules as the realization of the principle of equality determination of working conditions.
Accordingly, the Supreme Court's ruling, based on the principle of applying a favorable condition by priority, that the existing favorable labor contract should not be replaced by unfavorably changed one even if such change was legal should be corrected. Although the intention of the Supreme Court's such ruling was to protect individual workers from employment rules set unilaterally by employers, such protection should be addressed through a stronger application of the principle of equality decision of working conditions, the setting inherent limits for unfavorable changes of employment rule, or legislation that allows joint decisions between labor and management in determining working conditions.
Considering these points together, the principle of applying a favorable condition by priority is, under Korean labor law system, just a product of the combination of the necessity of worker protection and the lex posterior principle, and it is unreasonable, under law theory, to consider it as a general principle of labor law

참고자료

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