계약직공무원 직권면직에 대한 노동위원회를 통한 권리구제 가능성 (The Propriety of relief right through the Labor Relations Commission on ex officio dismissal for civil service)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 15권 / 4호 / 381 ~ 407페이지
· 저자명 : 유성재, 고영동

초록

According to the Labor Standard Act, in case a worker becomes a victim of unfair dismissal, right remedy through civil action for nonfeasance under the private law contractual obligations is not the only option. Order of remedy through the Regional Labor Relations Commission and its retrial through the National Labor Relations Commission, and right remedy through appeal litigation are also accepted.
In contrast, for unfair dismissal of civil servants, right remedy through administrative appeal or appeal litigation is approved in consideration of the legal nature of ‘administrative disposition.’ However, for unfair dismissal of all other civil servants except for those who are in contract positions, there seems no need for right remedy through the Labor Relations Commission as administrative appeal and appeal litigation proceedings are arranged.
However, considering dismissal of civil servants on contract as just ‘cancellation of contract’ rather than as ‘administrative disposition’, it is a precedent and general view of the academia to regard them as a case of party suit, not appeal litigation. As a result, civil servants in contract positions lose the opportunity to be under internal control through administrative appeal.
In regards to contract civil servants, it is questionable whether relief of right through the Labor Relations Commission is possible, which is negatively seen from precedents in general though it’s a lower instance. However, since the status of contract civil servants is very poor, it is desperately needed to approve right relief through the Labor Relations Commission to serve them equally as workers of private law.
By the nature of the contract service, to which Labor Standards Act can be analogically applied, and knowing that even Article 12 of Labor Standards Act expects the active application of the law to civil servants as the legislation intent, right remedy through the Labor Relations Commission performed separately from party suit should be approved.
Scheduled to be implemented in the latest revision for "National Public Service Act" and "Local Public Service Law" which instead of abolishing the contract service was introduced a new fixed-term system civil servant, the newly established dismissal of fixed-term system civil servant is intended at the "administrative disposition" which should be subject to appeal litigation or administrative appeal.
Used as a fixed-term system civil servant replace the concept of contract service, if it is the subject of party suit not appeal litigation, as traditional contract service, it should recognize the right relief through the Labor Relations Commission.
In this paper, for each type of civil servant, I will consider the appeal means for dismissal of each corresponding to the unfair dismissal of civil servants. After I consider the precedent and practice against it with the contents of the current law about the need for right relief through the Labor Relations Commission, even if there is no legal revision of separate ex officio dismissal applicable to unfair dismissal against contract service in particular, just the interpretation of the current law, will be considered as to whether or not be able to recognize the right relief through the Labor Relations Commission. Furthermore, I specifically suggested on the revised "the National Public Service Act" and "Local Public Service Act" fixed-term system civil servant for unfair dismissal on the procedures and remedies for the rights.

영어초록

According to the Labor Standard Act, in case a worker becomes a victim of unfair dismissal, right remedy through civil action for nonfeasance under the private law contractual obligations is not the only option. Order of remedy through the Regional Labor Relations Commission and its retrial through the National Labor Relations Commission, and right remedy through appeal litigation are also accepted.
In contrast, for unfair dismissal of civil servants, right remedy through administrative appeal or appeal litigation is approved in consideration of the legal nature of ‘administrative disposition.’ However, for unfair dismissal of all other civil servants except for those who are in contract positions, there seems no need for right remedy through the Labor Relations Commission as administrative appeal and appeal litigation proceedings are arranged.
However, considering dismissal of civil servants on contract as just ‘cancellation of contract’ rather than as ‘administrative disposition’, it is a precedent and general view of the academia to regard them as a case of party suit, not appeal litigation. As a result, civil servants in contract positions lose the opportunity to be under internal control through administrative appeal.
In regards to contract civil servants, it is questionable whether relief of right through the Labor Relations Commission is possible, which is negatively seen from precedents in general though it’s a lower instance. However, since the status of contract civil servants is very poor, it is desperately needed to approve right relief through the Labor Relations Commission to serve them equally as workers of private law.
By the nature of the contract service, to which Labor Standards Act can be analogically applied, and knowing that even Article 12 of Labor Standards Act expects the active application of the law to civil servants as the legislation intent, right remedy through the Labor Relations Commission performed separately from party suit should be approved.
Scheduled to be implemented in the latest revision for "National Public Service Act" and "Local Public Service Law" which instead of abolishing the contract service was introduced a new fixed-term system civil servant, the newly established dismissal of fixed-term system civil servant is intended at the "administrative disposition" which should be subject to appeal litigation or administrative appeal.
Used as a fixed-term system civil servant replace the concept of contract service, if it is the subject of party suit not appeal litigation, as traditional contract service, it should recognize the right relief through the Labor Relations Commission.
In this paper, for each type of civil servant, I will consider the appeal means for dismissal of each corresponding to the unfair dismissal of civil servants. After I consider the precedent and practice against it with the contents of the current law about the need for right relief through the Labor Relations Commission, even if there is no legal revision of separate ex officio dismissal applicable to unfair dismissal against contract service in particular, just the interpretation of the current law, will be considered as to whether or not be able to recognize the right relief through the Labor Relations Commission. Furthermore, I specifically suggested on the revised "the National Public Service Act" and "Local Public Service Act" fixed-term system civil servant for unfair dismissal on the procedures and remedies for the rights.

참고자료

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