근로기준법 제15조와 부당해고 구제법리 (부당해고 무효법리의 근거 문제 1) (The Article 15 of the Labor Standards Act and the Wrongful Discharge Remedies)

서지정보

· 발행기관 : 서울시립대학교 서울시립대학교 법학연구소
· 수록지 정보 : 서울법학 / 27권 / 4호 / 483 ~ 528페이지
· 저자명 : 고호성

초록

이 논문은 채무불이행책임론에 기반한 부당해고 구제법리의 구성을 시도한 것이다. 현재 이론･실무상 지배적인 강행규정 위반 법률행위 무효론을 근거로 하는 부당해고 무효법리와는 다른 새로운 대안을 제시하려는 것이다.
채무불이행책임론에 기반한 부당해고 구제법리 구성의 법적 근거로는 근로기준법 제15조(이 법을 위반한 근로계약), 특히 동조 제2항의 이른바 ‘보충적 효력’을 제시하였다. 근거 문제와 관련하여 제기될 수 있는 보충방식 문제, 채무적 효력 문제, ‘근로계약에 규정되지 아니한 사항’ 문제에 대한 해결방향도 제시하였다.
논문의 핵심적 내용은 채무불이행책임론적 구제방법의 내용을 구체화하는 부분이다. 기본적으로 손해배상과 강제이행의 문제를 다루었다.
강제이행에 대해서는 강제이행의 가능성 문제와 법률행위 부작위 채무 불이행 문제를 제기하였다. 특히 부당해고에 대한 해고무효 확인소송을 강제이행 방법으로 파악해야 함을 주장하였다. 이를 위해서 민법 제389조의 문제를 검토하였다.
손해배상에 대해서는 특히 장래손해 배상 문제를 제기하였다. 이 점과 연관하여 미국 판례법상 front pay 법리를 소개하였다. 중간수입 공제 문제에 대해서도 비교 목적으로 미국의 duty to mitigate 법리를 소개하였다.
채무불이행책임론에 기반한 부당해고 구제법리가 우리 노동현실과 이론･실무에서 지니는 의미도 검토하였다. 우리 노동현실에서 장래손해 배상이 해고무효를 대신할 수 있는 가능성이 크다는 점을 주장하였다. 이론･실무적으로는 구제청구의 과책요건 문제, 소멸시효 문제, 무효원용 문제, 포괄적 구제법리 구성 문제 등에 유용함을 주장하였다.
장래 연구과제로는 강행규정 위반 법률행위론에 근거한 부당해고 무효법리와 채무불이행책임론적 부당해고 구제법리의 관계 문제를 제시하였다. 민법 제103조 사회질서 위반 법률행위 무효법리에 주목하여 부당해고 구제법리의 전체적 재구성이 필요하다는 방향을 암시하였다.

영어초록

This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause.
The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory.
The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with.
As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined.
As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law.
I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory.
For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause.
The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory.
The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with.
As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined.
As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law.
I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory.
For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause.
The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory.
The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with.
As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined.
As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law.
I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory.
For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause.
The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory.
The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with.
As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined.
As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law.
I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory.
For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.

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