Korean Labor Laws on Individual Employment Relations
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2023-12-20 09:30
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Korean Labor Laws on Individual Employment Relations
도서명 : Korean Labor Laws on Individual Employment Relations
저자/출판사 : Dae,gi,Hong, 오래
쪽수 : 444쪽
출판일 : 2022-06-20
ISBN : 9791158291723
정가 : 25000
Preface
Contents
Admissibility of Favourability Principle
Ⅰ. Principle of Precedence of Upper-ranking Law 1
Ⅱ. Exception: Favourability Principle 1
Ⅲ. Applicability of Favourability Principle between Collective Agreements and Lower Norms 2
1. Issue
2. Applicable Jurisprudence
Ⅳ. Employment Rules and Labor Contracts 4
1. Admissibility of the Favourability Principle between Employment Rules and Labor Contracts
2. Possibility of Changing Favorable Content of Labor Contracts Following Unfavorable Change in Employment Rules
Workers under the Labor Standards Act
Ⅰ. Legal Provisions 7
Ⅱ. Precedents 7
1. Determination based on Actuality
2. Existence of Dependent Relation
Employee under the Labor Standards Act: Executive
Ⅰ. Definition of Executive 9
Ⅱ. Nature as Employee of Registered Executive (Registered Director, Registered Auditor) 10
1. General Standard
2. Determination on Actuaity
3. Review
Ⅲ. Nature as Employee of Unregistered Executives 12
1. Definition
2. Recent Precedents
3. Review
Nature as Employee under the Labor Standards ct for Illegal Immigrants
Ⅰ. Acknowledging Foreigners as Subject of Right to Work 14
Ⅱ. Effect of Labor Contracts Concluded with Foreigners Not Eligible for Employment under Immigration Laws 15
1. Issue
2. Nature of the Rule on Employment Restriction and Effect of Labor Contracts
3. Guaranteeing Rights for Labor Already Provided
4. Terminability of Labor Contract
Employer as Party to Labor Contract
Ⅰ. Employer as Party to Labor Contract 18
Ⅱ. Establishment of Labor Contract under Implicit Meeting of Minds 18
Ⅲ. External Expansion of the Concept of Employer as Party to Labor Contract 19
1. Issue
2. Precedents
Employer under the Labor Standards Act: A Person Managing Business and Acting on behalf of Business Owner
Ⅰ. A Person Responsible for Managing Business 21
Ⅱ. A Person Acting on Behalf of Business Owner for Other Matters Concerning Employees 22
Equal Treatment under Article 6 of the Labor Standards Act
Ⅰ. Definition 23
Ⅱ. Equal Treatment under Article 6 of the Labor Standards Act 23
1. Definition
2. Requirements
Ⅲ. Burden of Proof 26
Ⅳ. Effect of Violation 26
Principle of Equal Pay for Equal-Value Work
Ⅰ. Definition 27
Ⅱ. Details 27
Ⅲ. Prohibition on Discrimination based on Grounds Unrelated to Work 28
Elimination of Intermediate Exploitation
Ⅰ. Definition 30
Ⅱ. Requirements 30
1. Definition
2. Intervene in the Employment of Another Person for Making a Profit
3. Act of Acquiring Profits as an Intermediary
Ⅲ. Effect of Violation: Article 107 of the Labor Standards Act 33
Possibility of Cancelation of Labor Contracts
Ⅰ. Issue 34
Ⅱ. Cancelation of Labor Contract based on Career Falsification (Deception) 35
1. Before the initiation of work
2. After the initiation of work
Validity of Non-Compete Agreement
Ⅰ. Definition 38
Ⅱ. Occurrence and Extinction of Non-Competition Obligation 39
1. Non-Competition Obligation during Valid Labor Relationship
2. Non-Competition Obligation after Termination of Labor Relationship
Ⅲ. Determining the Validity of Non-Compete Agreement 40
1. Definition
2. Specific Method of Determination
3. Burden of proof
Prohibition on In-advance Determination of Penalty
Ⅰ. Legal Provision and Purpose 42
Ⅱ. Effect of Violation 43
Ⅲ. Claim for Actual Damages 43
Ⅳ. Validity of Establishment of Mandatory Tenure and Agreement on Fixed-Amount Return (Repayment) 43
1. Definition
2. Review by Type
Agreement on Signing Bonus
Ⅰ. Definition 46
Ⅱ. Review on the Validity of Signing Bonus Agreement 46
1. Nature of Signing Bonus Payment
2. Review of Validity by Nature of Each Contract and Return Obligation
Predetermined Hiring
Ⅰ. Definition 48
Ⅱ. Legal Nature 48
Ⅲ. Cancelation of Predetermined Hiring 49
1. Application of Dismissal Restriction Provision
2. Cancelation of Predetermined Hiring without Justifiable Cause
Probationary Employment
Ⅰ. Defining Probationary Employment, Probation Period, Probationary Employment Relationship, Probationary Employment Contract 51
Ⅱ. Establishment of Probationary Employment Relationshi: Conclusion of Probationary Employment Contract 52
Ⅲ. Legal Nature of Probationary Period: Whether a Labor Contract is Established 52
1. Issue
2. Precedents
Ⅳ. Determining Legality of Exercise of Reserved Contractual Right to Terminate 53
1. Definition
2. Applicable laws
3. Precedents
4. Review
Ⅴ. Obligation of Written Notification for Exercising Reserved Termination Rights 56
Ⅵ. Applicability of Prohibited Period of Dismissal 56
Ⅶ. Applicability of Disciplinary Dismissal Procedure under the In-house Rules 57
Determination of Nature as Wage
Ⅰ. Definition 58
Ⅱ. Determination of Nature as Wage 58
1. Basic Determination Criteria under Precedents
2. Specific Review: Determining the Nature as Remuneration for Work
Ⅲ. Nature as Wage of Performance Bonus for Collective Performance 61
1. Issue
2. Precedents
Ⅳ. Other 63
1. Wage as reimbursement of actual expenses
2. Wage based on courtesy and amicable intention
Method of Average Wage Calculation
Ⅰ. Definition 65
Ⅱ. Special Rules on Average Wage Calculation 66
1. Excluded period and wages
2. Specific review
Ⅲ. Minimum Limit of Average Wage 69
Ⅳ. Interim Conclusion 69
Ⅴ. Interpretation of Article 4 of the Enforcement Decree 71
1. Issue
2. Inclusion of cases where the calculation is materially inappropriate
Ⅵ. Other 73
Concept and Determination Standard of Ordinary Wage
Ⅰ. Definition 75
Ⅱ. Judging the Nature as Ordinary Wage 76
1. Definition
2. Consideration for prescribed work
3. 'Fixed wage’ paid 'regularly’ and ‘uniformly’
Ⅲ. Conditions of Denying Fixedness ①: Change in Payment Possibility 79
1. When being employed at a specific tme is a condition for payment
2. Fulfillment of a specific number of working days as payment condition
3. Fulfillment of a certain length of continued service as payment condition
4. Possession of special skills and experience as payment condition
Ⅳ. Conditions Denying Fixedness ②: Change in Payment Amount 82
1. Condition of varying payment amount according to the length of continued service
2. Condition of varying the payment amount according to work performance
Ⅴ. Other Issues of Ordinary Wage 85
1. Payment Amount to be Decided After Labor-Management Consultation
2. Fixed Money and Valuables as Nominal Actual Expenses Paid Regularly and Uniformly
Validity of Labor-Management Agreement and Issues in Additional Wage Claim
Ⅰ. Validity of Labor-Management Agreement on the Scope of Ordinary Wage 86
1. Issue
2. Precedents
Ⅱ. Additional Wage Claims and Principle of Good Faith 87
1. Issue
2. Additional wage claims and principle of good faith
Principle of Wage Payment: Principle of Full Payment
Ⅰ. Principle of Full Wage Payment 91
Ⅱ. Possibility of Offsetting with Wage Claims 91
1. Principle: Prohibition of offsetting
2. Allowed exceptions
Ⅲ. Severance Pay Claims 93
1. Legal nature of severance pay
2. Applicability of Article 43 of the Labor Standards Act
Ⅳ. Other: Agreement on Severance Installment Payment 94
1. Validity of agreement on severance installment payment
2. Legal nature of nominal severance payment: Unjust enrichment
3. Offset of the employer’s claim of the return of unjust enrichment with the worker’s claim for severance pay
4. Scope of allowed offset
Principle of Wage Payment: Payment in Currency
Ⅰ. Definition 96
Ⅱ. Agreement on the Transfer of Claims in lieu of Wage Payments 96
Principle of Wage Payment: Principle of Direct Payment
Ⅰ. Definition 98
Ⅱ. Applicability of the Direct Payment Principle for Wage Claim Transfers 98
1. Issue
2. Possibility of transferee’s claim for wages
Shutdown Allowance
Ⅰ. Definition 100
Ⅱ. Requirements 100
1. Reasons attributable to the employer
2. Shutdown
Ⅲ. Effect 103
Ⅳ. Relationship between Article 46 of the Labor Standards Act and Article 538, Paragraph 1 of the Civil Act When there are reasons attributable to the worker under the Civil Act 104
Preferential Payment for Wage Claims
Ⅰ. Definition 105
1. General preferential payment
2. Preferential payment(top priority)
Ⅱ. Scope of Preferential Payment Wage Claim 106
1. Preferential payment wage claim
2. Wage claim of top priority
Ⅲ. Total Asset of the Employer 108
Determining Hours as Work Hours
Ⅰ. Defining Work Hours and Recess Hours 109
Ⅱ. Work Hours during which Actual Work is Not being Conducted 109
1. Issue
2. Legal Nature of Work Hours during which Actual Work is Not being Conducted
Ⅲ. Standard for Distinguishing between Work Hours and Recess Hours 111
Agreement to Shorten Contractual Work Hours with the Intention to Evade Mandatory Rules
Ⅰ. Defining Contractual Work Hours 113
Ⅱ. Agreement to Shorten Contractual Work Hours with the Intention to Evade Mandatory Rules 113
Agreement on Guaranteed Hours System 115
Holiday and Holiday Work
Ⅰ. Definition 117
1. Definition of Holidays
2. Type of Holidays
Ⅱ. Weekly Holiday System under Article 55, Paragraph 1 of the Labor Standards Act 118
1. Definition
2. Requirements
3. Effect
4. Related Issue ①: Leave of Absence and Period of Industrial Action
5. Related Issue ②: Substitution of Weekly Holidays
Comprehensive Wage System
Ⅰ. Principle of Wage Calculations under the Labor Standards Act 123
Ⅱ. Comprehensive Wage System as an Exception 124
Ⅲ. Agreement on the Comprehensive Wage System 124
1. The standard for determining the existence of a valid agreement on comprehensive wage
2. Implicit Establishment of Comprehensive Wage Agreement
Ⅳ. Validity of an Agreement on the Comprehensive Wage System 127
Ⅴ. Effect of Comprehensive Wage Agreement 128
Calculating Attendance Rate for Annual Paid Leave
Ⅰ. Annual Paid Leave System 129
1. Definition
2. Legal nature of annual paid leave
Ⅱ. Prerequisites for Annual Paid Leave: Attendance Rate 130
Ⅲ. Period of Presumed Attendance 130
1. Statutory Presumed Attendance
2. Period of Causes Attributable to the Employer
Ⅳ. Period Treated as Absence from Work 133
1. Period of Suspension or Removal from Position
2. Period of Illegal Industrial Action
Ⅴ. Treatment of the Period of Labor Relationship Suspension 134
1. Issue
2. Method of Calculating the Attendance Rate in the Justified Periods
3. Calculating the Number of Leave Days
Issues in Using the Right to Annual Leave
Ⅰ. Employer's Right to Change the Period of the Annual Leave 138
Ⅱ. Employers Promoting the Use of Annual Paid Leave 139
Ⅲ. Substitution of Annual Paid Leave 139
Expiration of the Right to Annual Paid Leave and Annual Leave Allowances
Ⅰ. Expiration of the Annual Paid Leave 141
Ⅱ. Annual Leave Allowance 141
1. Definition
2. Absolute absenteeism during the year for using the annual leave
3. Resignation before the right to use annual leave arises
Subjects for Obtaining Opinions and Consent when Changing Employment Rules
Ⅰ. Definition of Employment Rules 143
Ⅱ. Obligation to Notify 143
Ⅲ. Scope of 'Employee' in the 'Majority of Employees' under Article 94, Paragraph 1 of the Labor Standards Act 144
1. Article 94, Paragraph 1, Labor Standards Act
2. Scope of ‘employee’ in the ‘majority of employees’
Ⅳ. Specific Review 145
1. Varying the periods of application of changed employment rules by worker groups
2. Varying the applicability of changed employment rules by worker group
Ⅴ. Related Issues: Qualification as a Member of the Union upon Determining the Majority of the Labor Union 146
Identifying 'Unfavorable Changes’
Ⅰ. Definition of Unfavorable Changes 148
Ⅱ. Specific Review 148
1. ‘Newly establishing’ unfavorable working conditions
2. Coexistence of favorable and unfavorable changes within the working conditions
3. Coexistence of advantageous and unfavorable changes among workers
Requirement of Unfavorable Change in Employment Rules: Method of Consent
Ⅰ. Issue 151
Ⅱ. When there is a majority union 151
Ⅲ. When there is no majority union 152
1. Basic position of precedents
2. Other obligations of the employer
Ⅳ. Whether the Right to Consent of Worker Members of the Labor-Management Council is Acknowledged 153
Validity of Unfavorable Changes without Consent:Jurisprudence of the Rationality under Social Norms
Ⅰ. Validity of Employment Rules without Consent 155
Ⅱ. When Rationality under Social Norms Exists 156
1. Issue
2. Specific standards for determining cases with rationality under social norms
3. Restrictive and strict interpretation
Effect of Unfavorable Change without Consent: New Employees
Ⅰ. Old precedents 158
Ⅱ. Recent precedents 159
1. Basic jurisprudence
2. Specific cases
Retroactive Consent on Unfavorable Employment Rule Changes by Collective Agreement
Ⅰ. Issue 161
Ⅱ. Validity of Retroactive Consent based on Collective Agreement 161
Labor Practices as Legal Source
Ⅰ. Legal Source 163
1. Legal Source of Labor Laws
2. Labor Practices
Ⅱ. Requirements for Change of Labor Practices Recognized as Legal Sources 165
1. Issue
2. Precedents
Justifiability of Job Change
Ⅰ. Definition of Job Change 166
Ⅱ. When the Labor Contract Limits the Details or Place of Work 166
1. Explicit limitation
2. Implicit limitation
Ⅲ. When Details of Work and Place of Work are not Limited 168
1. Occurrence of the right to order job changes
2. Restriction on the right to order job changes
3. Criteria for determining the justifiability of an order to change jobs in precedents
Ⅳ. When the Collective Agreement Restricts Personnel Dispositions 169
1. Definition
2. Precedents
Ⅴ. Effect of Violation 170
Transfer Order to a Different Company
Ⅰ. Definition 171
Ⅱ. Determining Justifiability of a Transfer Order to a Different Company 171
1. Principle: Worker's consent
2. Possibility of in-advance or comprehensive consent
3. Possibility of consent by labor practices
Ⅲ. Employment Relationship after Employer Change by a Transfer Order 173
Furlough by Authority
Ⅰ. Definition and Restriction of Furlough 174
Ⅱ. Limitation on Furlough by Authority 174
1. Basic Jurisprudence
2. Specific case ①: Furlough due to criminal indictment
3. Specific case ②: Furlough due to business needs
Removal from Position
Ⅰ. Definition of Removal from a Position 177
Ⅱ. Issues in Defining the Concept 178
1. Partial restriction on duties
2. Relationship with disciplinary actions
Ⅲ. Legal Basis 179
Ⅳ. Substantial Justifiability of Removal from a position 179
1. Basic jurisprudence of regulating removal from a position provided by courts
2. In violation of the Labor Standards Act, etc.: Violating the limitation of provisional personnel orders
3. Qualify as abuse of rights; Deviation from the scope of discretion
Ⅴ. Procedural Justifiability of Removal from a Position 181
1. When the self-governing rules include a procedural rule for removal from a position
2. When the self-governing rules do not include a procedural rule for removal from a position
Ⅵ. Fair Removal from a Position and Shutdown Allowances 182
Ⅶ. Interest to be Remedied for Removal from a Position before Dismissal 183
Definition of Disciplinary Action
Ⅰ. Definition of Disciplinary Action 185
Ⅱ. Prohibition of Dual Disciplinary Action: Principle of Double Jeopardy 185
1. When the employer voluntarily cancels the existing disciplinary action and takes a new lawful disciplinary action
2. Whether the same cause can be used for another disciplinary dismissal in the case of disciplinary procedure violations
Ⅲ. Effect of Violation 186
Restriction on Disciplinary Causes
Ⅰ. Meaning of Restriction on Disciplinary Causes 188
Ⅱ. Restriction under Article 23, Paragraph 1 of the Labor Standards Act 188
1. Definition
2. Determining ‘Justifiable Cause’
3. Reviewing each cause of disciplinary action
Ⅲ. Restriction on Causes under Self-Governing Rules 194
1. Definition
2. Validity of rules on restricting the right to disciplinary action under the self-governing rule
3. Cases where disciplinary action can be rendered only for disciplinary causes under the collective agreement
Restriction on the Severity of Disciplinary Action
Ⅰ. Definition 196
Ⅱ. Restriction on the Severity of Disciplinary Action ①: Proportionality 196
1. Definition
2. Justifiability of disciplinary dismissal
3. Multiple disciplinary causes
Ⅲ. Restriction on the Severity of Disciplinary Action ②: Fairness 198
Restriction on Disciplinary Procedures
Ⅰ. Relevant Provisions under the Labor Standards Act 199
Ⅱ. Determination on Procedural Justifiability of Disciplinary Action 199
1. When there is no disciplinary procedure rule under self-governing rules
2. When there is a disciplinary procedure rule under self-governing rules
Ⅲ. Specific Procedures 200
1. Procedures for granting an opportunity to explain
2. Advance notice procedure
3. Rules on the disciplinary committee composition
4. Rule on Workers’ Participation in the Disciplinary Committee
Ⅳ. Other Issues 206
1. Internal appeal procedure
2. Ordinary dismissal due to causes of disciplinary dismissal
Justifiability of Disciplinary Period
Ⅰ. Rules on Expiration of Disciplinary Action 208
1. Definition
2. Starting point of the temporal limitation of disciplinary action
Ⅱ. Rules on prohibiting disciplinary action during industrial action 209
Ⅲ. 'Disciplinary Action Time Limit Provision' and 'Prohibition Rules on Disciplinary Action during Industrial Action' 210
Comprehensive Succession of Employment Relations for Business Transfer
Ⅰ. Concept and Determination of Business Transfer 211
1. Definition of business
2. Defining business transfer
3. Determining business transfers
Ⅱ. Comprehensive succession of employment relationships for business transfers 213
Ⅲ. Scope of Workers to be Comprehensively Succeeded 213
1. Principle
2. Persons dismissed before business transfer
Ⅳ. Validity of an Agreement to Exclude Some Workers from Succession 215
Ⅴ. Dismissal for Managerial Reasons in the Process of Business Transfer 216
Ⅵ. Right to Refuse Succession of Workers in Business Transfer 217
1. Admissibility of the right to refuse succession and methods of indicating the refusal
2. Deadline for expressing the refusal of succession
Ⅶ. Other: Business Transfer and Entity Responsible for Paying Severance Payments 218
1. Definition
2. Severance pay for workers who agreed to discontinue continuous employment at the time of business transfer
Effect of Comprehensive Succession following Business Transfer
Ⅰ. Issue 220
Ⅱ. Employment Rules 220
1. Basic Principle
2. Potential violation of the principle of prohibition of differential severance pay
3. Issue pertaining to the employment rules integration
Ⅲ. Collective Agreement 222
Succession of Employment Relationships in Changing Consigned Companies
Ⅰ. Issue 223
Ⅱ. Precedents 224
Other: Merger & Split
Ⅰ. Business Merger 226
1. Definition
2. Comprehensive succession of employment relationships upon merger
Ⅱ. Business Split 227
1. Concept
2. Requirements for a succession of employment relationships upon corporate split
3. Individual workers' right to refuse succession
Automatic Termination of Employment Relationship
Ⅰ. Definition 229
Ⅱ. Automatic termination of an employment relationship 230
1. Extinction of parties
2. Expiration of the employment contract term
3. Reaching the retirement age
Issues related to Preset Resignation
Ⅰ. Definition 232
Ⅱ. Legal Nature of Preset Resignation 233
Ⅲ. Determining the Justifiability of Preset Resignation 233
Ⅳ. Specific Cases 234
1. Termination of apartment consignment management contract and preset resignation of security guards
2. Preset resignation due to extinction of reasons for leave of absence and non-submission of reinstatement statement
3. Leave of absence due to arrest and indictment and preset resignation
4. Preset resignation due to removal from a position
Definition of Dismissal
Ⅰ. Definition 240
Ⅱ. Types of Dismissal 240
1. Dismissal for reasons attributable to the worker
2. Dismissal based on reasons not attributable to the worker
Managerial Dismissal Requirement ①: Urgency
Ⅰ. Definition and Legal Rules of Managerial Dismissal 247
1. Definition of managerial dismissal
2. Four requirements for managerial dismissal
3. How to determine whether all requirements are met
Ⅱ. Burden of Proof 248
Ⅲ. Urgent Business Necessity for Reducing the Number of Employees: Urgency 249
1. Definition
2. The urgent business necessity of reducing the number of workers
3. Unit and scope of determining 'urgency'
4. Time of determining 'urgency'
Managerial Dismissal Requirement ②: Efforts to Avoid Dismissal
Ⅰ. Definition of Efforts to Avoid Dismissal 253
Ⅱ. Method of Determining Fulfillment of the Efforts to Avoid Dismissal 254
1. Taking all possible measures to minimize the scope of dismissal
2. Consideration of specific and individual circumstances for the method and degree
3. Considering the circumstances of reaching the agreement after labor-management consultations
Ⅲ. Timing of Judging the Fulfillment of Efforts to Avoid Dismissal 255
Managerial Dismissal Requirement ③: Reasonable and Fair Standard
Ⅰ. Definition 256
Ⅱ. Criteria for Determining Reasonableness and Fairness of the Standards 256
1. Consideration of specific and individual circumstances
2. Consideration of circumstances of reaching the agreement after labor-management consultations
3. Fair application of objective standards
Managerial Dismissal and Duty to Consult ①: Parties of Consultation
Ⅰ. Definition 259
Ⅱ. Consultation with Workers’ Representative 50 Days in Advance 260
Ⅲ. When the Target Group for Managerial Dismissal is 'All Workers' 260
1. Principle
2. When an existing labor union is not organized by the majority
Ⅳ. When Some Worker Groups are Subject to Managerial Dismissal 262
1. Issue
2. Basic principle
3. Exceptions
Managerial Dismissal and Duty to Consult ②: Effect of Violation of Duty to Consult
Ⅰ. Definition 265
Ⅱ. Violations of Duty of Consultation 265
Ⅲ. Violations of the Notification/Consultation Period (Compliance with the 50-day Period) 266
Ⅳ. Period of Notification/Consultation and Notice Period of Dismissal 266
Ⅴ. Remedy for Wrongful Dismissal 267
Managerial Dismissal and Duty of Preferential Rehiring
Ⅰ. Definition 268
Ⅱ. Requirements 268
Ⅲ. Effect 269
Ⅳ. Violation of the Duty of Preferential Rehiring 270
1. Definition
2. Specific meaning of the duty of preferential rehiring
3. Effect of violation of the duty of preferential rehiring
Restriction on Dismissal: Restriction on the Timing of Dismissal
Ⅰ. Legal Provision 274
Ⅱ. Period of work suspension for medical treatment due to occupational accidents 275
1. Definition
2. Periods when 'suspension of work period for which dismissal is restricted'
Restriction on Dismissal: Advance Notice of Dismissal
Ⅰ. Definition 277
Ⅱ. Exclusion from the Advance Notice of Dismissal 277
Ⅲ. Details of the Duty of Advance Notice of Dismissal 278
1. Notice 30 days in advance
2. Payment of allowances
Ⅳ. Validity of Dismissal in Violation of the Duty of Advance Notice of Dismissal 279
Ⅴ. Paid Advance Notice Allowance of Dismissal as Unjust Enrichment upon Confirmation of Wrongful Dismissal 279
1. Issue
2. A case law
Restriction on Dismissal: Written Notice of Reason and Timing for Dismissal
Ⅰ. Definition 283
Ⅱ. Determining the Fulfillment of the Duty of Written Notification 283
1. Specifying the reasons for dismissal
2. Specifying the timing of dismissal
3. Notice in writing
4. Timing of written notice
Ⅲ. Effect of Violation 287
Provisions on Dismissal Consultation and Agreement
Ⅰ. Definition 288
Ⅱ. Interpretative Theories on Determining Justifiability 288
1. Issue
2. Precedents
Ⅲ. Validity of Dismissal in Violation 289
1. When the purpose is to refer to opinions on personnel decisions
2. When the purpose is to reach an agreement with the labor union
Submission of Resignation Letter Based on Untrue Intention
Ⅰ. Definition of Dismissal 292
Ⅱ. Expression of Untrue Intention under Article 107 of the Civil Act 292
1. Definition
2. Application of Article 107 of the Civil Act to labor relations
Ⅲ. Distinguishing True and Untrue Intentions 293
1. Basic approach in case law
2. When the worker had no choice but to submit the resignation letter under the employer’s directions
3. When the worker determines that submitting the letter of resignation is the best choice in the circumstances at the time
4. Interim Conclusion
Nature of Expression to Resign and Withdrawal of Expression to Resign
Ⅰ. Definition 296
Ⅱ. Distinguishing between Notice of Termination and Offer to Terminte based on Agreement 296
1. Notice of termination and offer to terminate based on agreement
2. Criteria for distinguishing the two forms
Ⅲ. Withdrawal of Termination Notice 298
Ⅳ. Withdrawal of the Offer to Terminate based on Agreement 299
Wrongful Dismissal and Administrative Remedies
Ⅰ. Dualism: Administrative Remedies and Judicial Remedies 300
Ⅱ. Relief Procedures of the Labor Relations Commission 301
Ⅲ. Benefit of Relief 302
Ⅳ. Details of the Relief Order of the Labor Relations Commission 304
1. Definition
2. Reinstatement to the original position
3. Wage-equivalent payment
4. Scope of the amount equivalent to wages
5. Interim income deduction
Wrongful Dismissal and Legal Relief
Ⅰ. Definition 311
Ⅱ. Whether Wrongful Dismissal Directly Constitutes Tort 312
Ⅲ. Requirements for Wrongful Dismissal to be Tort: Intentional Act or Negligence 312
1. Definition
2. Deviation or abuse of disciplinary discretion
3. Dismissal due to disguised business closure
Ⅳ. Retroactive Wage Claim and Damage Claim 314
Ⅴ. Claim for Compensation for Mental Sufferings Caused by Torts 315
Legal Restrictions on the Use of Fixed-term Workers
Ⅰ. Definition of Fixed-term Worker 316
Ⅱ. Legal Restriction on Using Fixed-term Workers 316
1. Definition
2. Effect of use in excess of the use period
Ⅲ. Exception: Each Subparagraphs of the Proviso to Article 4, Paragraph 1 of the Fixed-term Worker Act 318
1. Subparagraph 1: Completion of a project or a specific duty
2. Subparagraph 5 of Article 4 of the Act, Article 3(2)-1 of the Enforcement Decree: Provision of jobs by the national or local governments
3. Subparagraph 6
Ⅳ. Method of Calculation of Total Period of Use 321
1. Existence of both application period and exception period
2. A gap between repeatedly concluded employment contracts
3.When there is no gap period between repeatedly concluded employment contracts
Restrictions on Interpretation of the Use of Fixed-term Workers: Before the Enforcement of Fixed-term Worker Act
Ⅰ. Definition 325
Ⅱ. In case the fixed-term is a mere formality 325
1. Definition
2. Determination Criteria
Ⅲ. Cases where the Right to Expect Renewal is Acknowledged 326
The Course of Precedents the Enforcement of Fixed-term Worker Act
Ⅰ. Continuing Application of Term Formalization Jurisprudence 328
Ⅱ. Continued Application of the Jurisprudence of the Renewal Expectation Rights 329
1. Continued Applicability of the Jurisprudence of the Renewal Expectation Rights
2. Jurisprudence of the Reasonable Reason for Refusal of Renewal
3. Applicability to Persons Exempted from the Proviso to Article 4, Paragraph 1 of the Fix-term Worker Act
4. Renewal Expectation Rights and Interest in Litigation
Ⅲ. Jurisprudence of the Right to Expect Conversion to Full-Time Employment 332
Prohibition of Discrimination against Fixed-term Workers
Ⅰ. Definition 334
Ⅱ. Requirements 335
1. 'Subject to be compared’ under Article 8, Paragraph 1 of the Act
2. ‘Discriminatory treatment' under Article 2, Subparagraph 3 of the Act
Ⅲ. Burden of Proof 340
Request for Correction of Unfavorable Treatment of Fixed-term Workers
Ⅰ. Definition 341
Ⅱ. Statute of Limitations for the Application for Correction of Disrimination 341
1. Article 9, Paragraph 1, proviso of the Fixed-term Worker Act
2. Continuous discrimination
Ⅲ. Corrective Order 342
1. Definition
2. Details of the corrective order
3. Benefits of correcting discrimination
Temporary Placement of Workers
Ⅰ. Definition 345
Ⅱ. Determination of Temporary Placement of Workers 346
Ⅲ. Restrictions on Temporary Placement 347
Effect of Unlawful Temporary Placement
Ⅰ. Obligation of Employment 348
Ⅱ. Legal Issues concerning Direct Employment Obligations 349
1. Occurrence of direct employment obligations
2. Level relationship in the case of violation of direct employment obligation
User Company's Duty to Consider Safety
Ⅰ. Employer’s Duty to Consider Safety 353
Ⅱ. User Company’s Duty to Consider Safety 353
Fatal Accidents Punishment Act
Ⅰ. Implementation of the Fatal Accidents Punishment Act 355
Ⅱ. Key Concepts 355
1. Fatal industrial accident
2. Fatal civil accident
Ⅲ. Duty to Secure Safety and Health 356
Ⅳ. Punishments for Business Owners and Directors 357
Ⅴ. Application 358
Workplace Harassment
Ⅰ. Definition 359
Ⅱ. Criteria for Determining Workplace Harassment 360
Appendix 363
도서명 : Korean Labor Laws on Individual Employment Relations
저자/출판사 : Dae,gi,Hong, 오래
쪽수 : 444쪽
출판일 : 2022-06-20
ISBN : 9791158291723
정가 : 25000
Preface
Contents
Admissibility of Favourability Principle
Ⅰ. Principle of Precedence of Upper-ranking Law 1
Ⅱ. Exception: Favourability Principle 1
Ⅲ. Applicability of Favourability Principle between Collective Agreements and Lower Norms 2
1. Issue
2. Applicable Jurisprudence
Ⅳ. Employment Rules and Labor Contracts 4
1. Admissibility of the Favourability Principle between Employment Rules and Labor Contracts
2. Possibility of Changing Favorable Content of Labor Contracts Following Unfavorable Change in Employment Rules
Workers under the Labor Standards Act
Ⅰ. Legal Provisions 7
Ⅱ. Precedents 7
1. Determination based on Actuality
2. Existence of Dependent Relation
Employee under the Labor Standards Act: Executive
Ⅰ. Definition of Executive 9
Ⅱ. Nature as Employee of Registered Executive (Registered Director, Registered Auditor) 10
1. General Standard
2. Determination on Actuaity
3. Review
Ⅲ. Nature as Employee of Unregistered Executives 12
1. Definition
2. Recent Precedents
3. Review
Nature as Employee under the Labor Standards ct for Illegal Immigrants
Ⅰ. Acknowledging Foreigners as Subject of Right to Work 14
Ⅱ. Effect of Labor Contracts Concluded with Foreigners Not Eligible for Employment under Immigration Laws 15
1. Issue
2. Nature of the Rule on Employment Restriction and Effect of Labor Contracts
3. Guaranteeing Rights for Labor Already Provided
4. Terminability of Labor Contract
Employer as Party to Labor Contract
Ⅰ. Employer as Party to Labor Contract 18
Ⅱ. Establishment of Labor Contract under Implicit Meeting of Minds 18
Ⅲ. External Expansion of the Concept of Employer as Party to Labor Contract 19
1. Issue
2. Precedents
Employer under the Labor Standards Act: A Person Managing Business and Acting on behalf of Business Owner
Ⅰ. A Person Responsible for Managing Business 21
Ⅱ. A Person Acting on Behalf of Business Owner for Other Matters Concerning Employees 22
Equal Treatment under Article 6 of the Labor Standards Act
Ⅰ. Definition 23
Ⅱ. Equal Treatment under Article 6 of the Labor Standards Act 23
1. Definition
2. Requirements
Ⅲ. Burden of Proof 26
Ⅳ. Effect of Violation 26
Principle of Equal Pay for Equal-Value Work
Ⅰ. Definition 27
Ⅱ. Details 27
Ⅲ. Prohibition on Discrimination based on Grounds Unrelated to Work 28
Elimination of Intermediate Exploitation
Ⅰ. Definition 30
Ⅱ. Requirements 30
1. Definition
2. Intervene in the Employment of Another Person for Making a Profit
3. Act of Acquiring Profits as an Intermediary
Ⅲ. Effect of Violation: Article 107 of the Labor Standards Act 33
Possibility of Cancelation of Labor Contracts
Ⅰ. Issue 34
Ⅱ. Cancelation of Labor Contract based on Career Falsification (Deception) 35
1. Before the initiation of work
2. After the initiation of work
Validity of Non-Compete Agreement
Ⅰ. Definition 38
Ⅱ. Occurrence and Extinction of Non-Competition Obligation 39
1. Non-Competition Obligation during Valid Labor Relationship
2. Non-Competition Obligation after Termination of Labor Relationship
Ⅲ. Determining the Validity of Non-Compete Agreement 40
1. Definition
2. Specific Method of Determination
3. Burden of proof
Prohibition on In-advance Determination of Penalty
Ⅰ. Legal Provision and Purpose 42
Ⅱ. Effect of Violation 43
Ⅲ. Claim for Actual Damages 43
Ⅳ. Validity of Establishment of Mandatory Tenure and Agreement on Fixed-Amount Return (Repayment) 43
1. Definition
2. Review by Type
Agreement on Signing Bonus
Ⅰ. Definition 46
Ⅱ. Review on the Validity of Signing Bonus Agreement 46
1. Nature of Signing Bonus Payment
2. Review of Validity by Nature of Each Contract and Return Obligation
Predetermined Hiring
Ⅰ. Definition 48
Ⅱ. Legal Nature 48
Ⅲ. Cancelation of Predetermined Hiring 49
1. Application of Dismissal Restriction Provision
2. Cancelation of Predetermined Hiring without Justifiable Cause
Probationary Employment
Ⅰ. Defining Probationary Employment, Probation Period, Probationary Employment Relationship, Probationary Employment Contract 51
Ⅱ. Establishment of Probationary Employment Relationshi: Conclusion of Probationary Employment Contract 52
Ⅲ. Legal Nature of Probationary Period: Whether a Labor Contract is Established 52
1. Issue
2. Precedents
Ⅳ. Determining Legality of Exercise of Reserved Contractual Right to Terminate 53
1. Definition
2. Applicable laws
3. Precedents
4. Review
Ⅴ. Obligation of Written Notification for Exercising Reserved Termination Rights 56
Ⅵ. Applicability of Prohibited Period of Dismissal 56
Ⅶ. Applicability of Disciplinary Dismissal Procedure under the In-house Rules 57
Determination of Nature as Wage
Ⅰ. Definition 58
Ⅱ. Determination of Nature as Wage 58
1. Basic Determination Criteria under Precedents
2. Specific Review: Determining the Nature as Remuneration for Work
Ⅲ. Nature as Wage of Performance Bonus for Collective Performance 61
1. Issue
2. Precedents
Ⅳ. Other 63
1. Wage as reimbursement of actual expenses
2. Wage based on courtesy and amicable intention
Method of Average Wage Calculation
Ⅰ. Definition 65
Ⅱ. Special Rules on Average Wage Calculation 66
1. Excluded period and wages
2. Specific review
Ⅲ. Minimum Limit of Average Wage 69
Ⅳ. Interim Conclusion 69
Ⅴ. Interpretation of Article 4 of the Enforcement Decree 71
1. Issue
2. Inclusion of cases where the calculation is materially inappropriate
Ⅵ. Other 73
Concept and Determination Standard of Ordinary Wage
Ⅰ. Definition 75
Ⅱ. Judging the Nature as Ordinary Wage 76
1. Definition
2. Consideration for prescribed work
3. 'Fixed wage’ paid 'regularly’ and ‘uniformly’
Ⅲ. Conditions of Denying Fixedness ①: Change in Payment Possibility 79
1. When being employed at a specific tme is a condition for payment
2. Fulfillment of a specific number of working days as payment condition
3. Fulfillment of a certain length of continued service as payment condition
4. Possession of special skills and experience as payment condition
Ⅳ. Conditions Denying Fixedness ②: Change in Payment Amount 82
1. Condition of varying payment amount according to the length of continued service
2. Condition of varying the payment amount according to work performance
Ⅴ. Other Issues of Ordinary Wage 85
1. Payment Amount to be Decided After Labor-Management Consultation
2. Fixed Money and Valuables as Nominal Actual Expenses Paid Regularly and Uniformly
Validity of Labor-Management Agreement and Issues in Additional Wage Claim
Ⅰ. Validity of Labor-Management Agreement on the Scope of Ordinary Wage 86
1. Issue
2. Precedents
Ⅱ. Additional Wage Claims and Principle of Good Faith 87
1. Issue
2. Additional wage claims and principle of good faith
Principle of Wage Payment: Principle of Full Payment
Ⅰ. Principle of Full Wage Payment 91
Ⅱ. Possibility of Offsetting with Wage Claims 91
1. Principle: Prohibition of offsetting
2. Allowed exceptions
Ⅲ. Severance Pay Claims 93
1. Legal nature of severance pay
2. Applicability of Article 43 of the Labor Standards Act
Ⅳ. Other: Agreement on Severance Installment Payment 94
1. Validity of agreement on severance installment payment
2. Legal nature of nominal severance payment: Unjust enrichment
3. Offset of the employer’s claim of the return of unjust enrichment with the worker’s claim for severance pay
4. Scope of allowed offset
Principle of Wage Payment: Payment in Currency
Ⅰ. Definition 96
Ⅱ. Agreement on the Transfer of Claims in lieu of Wage Payments 96
Principle of Wage Payment: Principle of Direct Payment
Ⅰ. Definition 98
Ⅱ. Applicability of the Direct Payment Principle for Wage Claim Transfers 98
1. Issue
2. Possibility of transferee’s claim for wages
Shutdown Allowance
Ⅰ. Definition 100
Ⅱ. Requirements 100
1. Reasons attributable to the employer
2. Shutdown
Ⅲ. Effect 103
Ⅳ. Relationship between Article 46 of the Labor Standards Act and Article 538, Paragraph 1 of the Civil Act When there are reasons attributable to the worker under the Civil Act 104
Preferential Payment for Wage Claims
Ⅰ. Definition 105
1. General preferential payment
2. Preferential payment(top priority)
Ⅱ. Scope of Preferential Payment Wage Claim 106
1. Preferential payment wage claim
2. Wage claim of top priority
Ⅲ. Total Asset of the Employer 108
Determining Hours as Work Hours
Ⅰ. Defining Work Hours and Recess Hours 109
Ⅱ. Work Hours during which Actual Work is Not being Conducted 109
1. Issue
2. Legal Nature of Work Hours during which Actual Work is Not being Conducted
Ⅲ. Standard for Distinguishing between Work Hours and Recess Hours 111
Agreement to Shorten Contractual Work Hours with the Intention to Evade Mandatory Rules
Ⅰ. Defining Contractual Work Hours 113
Ⅱ. Agreement to Shorten Contractual Work Hours with the Intention to Evade Mandatory Rules 113
Agreement on Guaranteed Hours System 115
Holiday and Holiday Work
Ⅰ. Definition 117
1. Definition of Holidays
2. Type of Holidays
Ⅱ. Weekly Holiday System under Article 55, Paragraph 1 of the Labor Standards Act 118
1. Definition
2. Requirements
3. Effect
4. Related Issue ①: Leave of Absence and Period of Industrial Action
5. Related Issue ②: Substitution of Weekly Holidays
Comprehensive Wage System
Ⅰ. Principle of Wage Calculations under the Labor Standards Act 123
Ⅱ. Comprehensive Wage System as an Exception 124
Ⅲ. Agreement on the Comprehensive Wage System 124
1. The standard for determining the existence of a valid agreement on comprehensive wage
2. Implicit Establishment of Comprehensive Wage Agreement
Ⅳ. Validity of an Agreement on the Comprehensive Wage System 127
Ⅴ. Effect of Comprehensive Wage Agreement 128
Calculating Attendance Rate for Annual Paid Leave
Ⅰ. Annual Paid Leave System 129
1. Definition
2. Legal nature of annual paid leave
Ⅱ. Prerequisites for Annual Paid Leave: Attendance Rate 130
Ⅲ. Period of Presumed Attendance 130
1. Statutory Presumed Attendance
2. Period of Causes Attributable to the Employer
Ⅳ. Period Treated as Absence from Work 133
1. Period of Suspension or Removal from Position
2. Period of Illegal Industrial Action
Ⅴ. Treatment of the Period of Labor Relationship Suspension 134
1. Issue
2. Method of Calculating the Attendance Rate in the Justified Periods
3. Calculating the Number of Leave Days
Issues in Using the Right to Annual Leave
Ⅰ. Employer's Right to Change the Period of the Annual Leave 138
Ⅱ. Employers Promoting the Use of Annual Paid Leave 139
Ⅲ. Substitution of Annual Paid Leave 139
Expiration of the Right to Annual Paid Leave and Annual Leave Allowances
Ⅰ. Expiration of the Annual Paid Leave 141
Ⅱ. Annual Leave Allowance 141
1. Definition
2. Absolute absenteeism during the year for using the annual leave
3. Resignation before the right to use annual leave arises
Subjects for Obtaining Opinions and Consent when Changing Employment Rules
Ⅰ. Definition of Employment Rules 143
Ⅱ. Obligation to Notify 143
Ⅲ. Scope of 'Employee' in the 'Majority of Employees' under Article 94, Paragraph 1 of the Labor Standards Act 144
1. Article 94, Paragraph 1, Labor Standards Act
2. Scope of ‘employee’ in the ‘majority of employees’
Ⅳ. Specific Review 145
1. Varying the periods of application of changed employment rules by worker groups
2. Varying the applicability of changed employment rules by worker group
Ⅴ. Related Issues: Qualification as a Member of the Union upon Determining the Majority of the Labor Union 146
Identifying 'Unfavorable Changes’
Ⅰ. Definition of Unfavorable Changes 148
Ⅱ. Specific Review 148
1. ‘Newly establishing’ unfavorable working conditions
2. Coexistence of favorable and unfavorable changes within the working conditions
3. Coexistence of advantageous and unfavorable changes among workers
Requirement of Unfavorable Change in Employment Rules: Method of Consent
Ⅰ. Issue 151
Ⅱ. When there is a majority union 151
Ⅲ. When there is no majority union 152
1. Basic position of precedents
2. Other obligations of the employer
Ⅳ. Whether the Right to Consent of Worker Members of the Labor-Management Council is Acknowledged 153
Validity of Unfavorable Changes without Consent:Jurisprudence of the Rationality under Social Norms
Ⅰ. Validity of Employment Rules without Consent 155
Ⅱ. When Rationality under Social Norms Exists 156
1. Issue
2. Specific standards for determining cases with rationality under social norms
3. Restrictive and strict interpretation
Effect of Unfavorable Change without Consent: New Employees
Ⅰ. Old precedents 158
Ⅱ. Recent precedents 159
1. Basic jurisprudence
2. Specific cases
Retroactive Consent on Unfavorable Employment Rule Changes by Collective Agreement
Ⅰ. Issue 161
Ⅱ. Validity of Retroactive Consent based on Collective Agreement 161
Labor Practices as Legal Source
Ⅰ. Legal Source 163
1. Legal Source of Labor Laws
2. Labor Practices
Ⅱ. Requirements for Change of Labor Practices Recognized as Legal Sources 165
1. Issue
2. Precedents
Justifiability of Job Change
Ⅰ. Definition of Job Change 166
Ⅱ. When the Labor Contract Limits the Details or Place of Work 166
1. Explicit limitation
2. Implicit limitation
Ⅲ. When Details of Work and Place of Work are not Limited 168
1. Occurrence of the right to order job changes
2. Restriction on the right to order job changes
3. Criteria for determining the justifiability of an order to change jobs in precedents
Ⅳ. When the Collective Agreement Restricts Personnel Dispositions 169
1. Definition
2. Precedents
Ⅴ. Effect of Violation 170
Transfer Order to a Different Company
Ⅰ. Definition 171
Ⅱ. Determining Justifiability of a Transfer Order to a Different Company 171
1. Principle: Worker's consent
2. Possibility of in-advance or comprehensive consent
3. Possibility of consent by labor practices
Ⅲ. Employment Relationship after Employer Change by a Transfer Order 173
Furlough by Authority
Ⅰ. Definition and Restriction of Furlough 174
Ⅱ. Limitation on Furlough by Authority 174
1. Basic Jurisprudence
2. Specific case ①: Furlough due to criminal indictment
3. Specific case ②: Furlough due to business needs
Removal from Position
Ⅰ. Definition of Removal from a Position 177
Ⅱ. Issues in Defining the Concept 178
1. Partial restriction on duties
2. Relationship with disciplinary actions
Ⅲ. Legal Basis 179
Ⅳ. Substantial Justifiability of Removal from a position 179
1. Basic jurisprudence of regulating removal from a position provided by courts
2. In violation of the Labor Standards Act, etc.: Violating the limitation of provisional personnel orders
3. Qualify as abuse of rights; Deviation from the scope of discretion
Ⅴ. Procedural Justifiability of Removal from a Position 181
1. When the self-governing rules include a procedural rule for removal from a position
2. When the self-governing rules do not include a procedural rule for removal from a position
Ⅵ. Fair Removal from a Position and Shutdown Allowances 182
Ⅶ. Interest to be Remedied for Removal from a Position before Dismissal 183
Definition of Disciplinary Action
Ⅰ. Definition of Disciplinary Action 185
Ⅱ. Prohibition of Dual Disciplinary Action: Principle of Double Jeopardy 185
1. When the employer voluntarily cancels the existing disciplinary action and takes a new lawful disciplinary action
2. Whether the same cause can be used for another disciplinary dismissal in the case of disciplinary procedure violations
Ⅲ. Effect of Violation 186
Restriction on Disciplinary Causes
Ⅰ. Meaning of Restriction on Disciplinary Causes 188
Ⅱ. Restriction under Article 23, Paragraph 1 of the Labor Standards Act 188
1. Definition
2. Determining ‘Justifiable Cause’
3. Reviewing each cause of disciplinary action
Ⅲ. Restriction on Causes under Self-Governing Rules 194
1. Definition
2. Validity of rules on restricting the right to disciplinary action under the self-governing rule
3. Cases where disciplinary action can be rendered only for disciplinary causes under the collective agreement
Restriction on the Severity of Disciplinary Action
Ⅰ. Definition 196
Ⅱ. Restriction on the Severity of Disciplinary Action ①: Proportionality 196
1. Definition
2. Justifiability of disciplinary dismissal
3. Multiple disciplinary causes
Ⅲ. Restriction on the Severity of Disciplinary Action ②: Fairness 198
Restriction on Disciplinary Procedures
Ⅰ. Relevant Provisions under the Labor Standards Act 199
Ⅱ. Determination on Procedural Justifiability of Disciplinary Action 199
1. When there is no disciplinary procedure rule under self-governing rules
2. When there is a disciplinary procedure rule under self-governing rules
Ⅲ. Specific Procedures 200
1. Procedures for granting an opportunity to explain
2. Advance notice procedure
3. Rules on the disciplinary committee composition
4. Rule on Workers’ Participation in the Disciplinary Committee
Ⅳ. Other Issues 206
1. Internal appeal procedure
2. Ordinary dismissal due to causes of disciplinary dismissal
Justifiability of Disciplinary Period
Ⅰ. Rules on Expiration of Disciplinary Action 208
1. Definition
2. Starting point of the temporal limitation of disciplinary action
Ⅱ. Rules on prohibiting disciplinary action during industrial action 209
Ⅲ. 'Disciplinary Action Time Limit Provision' and 'Prohibition Rules on Disciplinary Action during Industrial Action' 210
Comprehensive Succession of Employment Relations for Business Transfer
Ⅰ. Concept and Determination of Business Transfer 211
1. Definition of business
2. Defining business transfer
3. Determining business transfers
Ⅱ. Comprehensive succession of employment relationships for business transfers 213
Ⅲ. Scope of Workers to be Comprehensively Succeeded 213
1. Principle
2. Persons dismissed before business transfer
Ⅳ. Validity of an Agreement to Exclude Some Workers from Succession 215
Ⅴ. Dismissal for Managerial Reasons in the Process of Business Transfer 216
Ⅵ. Right to Refuse Succession of Workers in Business Transfer 217
1. Admissibility of the right to refuse succession and methods of indicating the refusal
2. Deadline for expressing the refusal of succession
Ⅶ. Other: Business Transfer and Entity Responsible for Paying Severance Payments 218
1. Definition
2. Severance pay for workers who agreed to discontinue continuous employment at the time of business transfer
Effect of Comprehensive Succession following Business Transfer
Ⅰ. Issue 220
Ⅱ. Employment Rules 220
1. Basic Principle
2. Potential violation of the principle of prohibition of differential severance pay
3. Issue pertaining to the employment rules integration
Ⅲ. Collective Agreement 222
Succession of Employment Relationships in Changing Consigned Companies
Ⅰ. Issue 223
Ⅱ. Precedents 224
Other: Merger & Split
Ⅰ. Business Merger 226
1. Definition
2. Comprehensive succession of employment relationships upon merger
Ⅱ. Business Split 227
1. Concept
2. Requirements for a succession of employment relationships upon corporate split
3. Individual workers' right to refuse succession
Automatic Termination of Employment Relationship
Ⅰ. Definition 229
Ⅱ. Automatic termination of an employment relationship 230
1. Extinction of parties
2. Expiration of the employment contract term
3. Reaching the retirement age
Issues related to Preset Resignation
Ⅰ. Definition 232
Ⅱ. Legal Nature of Preset Resignation 233
Ⅲ. Determining the Justifiability of Preset Resignation 233
Ⅳ. Specific Cases 234
1. Termination of apartment consignment management contract and preset resignation of security guards
2. Preset resignation due to extinction of reasons for leave of absence and non-submission of reinstatement statement
3. Leave of absence due to arrest and indictment and preset resignation
4. Preset resignation due to removal from a position
Definition of Dismissal
Ⅰ. Definition 240
Ⅱ. Types of Dismissal 240
1. Dismissal for reasons attributable to the worker
2. Dismissal based on reasons not attributable to the worker
Managerial Dismissal Requirement ①: Urgency
Ⅰ. Definition and Legal Rules of Managerial Dismissal 247
1. Definition of managerial dismissal
2. Four requirements for managerial dismissal
3. How to determine whether all requirements are met
Ⅱ. Burden of Proof 248
Ⅲ. Urgent Business Necessity for Reducing the Number of Employees: Urgency 249
1. Definition
2. The urgent business necessity of reducing the number of workers
3. Unit and scope of determining 'urgency'
4. Time of determining 'urgency'
Managerial Dismissal Requirement ②: Efforts to Avoid Dismissal
Ⅰ. Definition of Efforts to Avoid Dismissal 253
Ⅱ. Method of Determining Fulfillment of the Efforts to Avoid Dismissal 254
1. Taking all possible measures to minimize the scope of dismissal
2. Consideration of specific and individual circumstances for the method and degree
3. Considering the circumstances of reaching the agreement after labor-management consultations
Ⅲ. Timing of Judging the Fulfillment of Efforts to Avoid Dismissal 255
Managerial Dismissal Requirement ③: Reasonable and Fair Standard
Ⅰ. Definition 256
Ⅱ. Criteria for Determining Reasonableness and Fairness of the Standards 256
1. Consideration of specific and individual circumstances
2. Consideration of circumstances of reaching the agreement after labor-management consultations
3. Fair application of objective standards
Managerial Dismissal and Duty to Consult ①: Parties of Consultation
Ⅰ. Definition 259
Ⅱ. Consultation with Workers’ Representative 50 Days in Advance 260
Ⅲ. When the Target Group for Managerial Dismissal is 'All Workers' 260
1. Principle
2. When an existing labor union is not organized by the majority
Ⅳ. When Some Worker Groups are Subject to Managerial Dismissal 262
1. Issue
2. Basic principle
3. Exceptions
Managerial Dismissal and Duty to Consult ②: Effect of Violation of Duty to Consult
Ⅰ. Definition 265
Ⅱ. Violations of Duty of Consultation 265
Ⅲ. Violations of the Notification/Consultation Period (Compliance with the 50-day Period) 266
Ⅳ. Period of Notification/Consultation and Notice Period of Dismissal 266
Ⅴ. Remedy for Wrongful Dismissal 267
Managerial Dismissal and Duty of Preferential Rehiring
Ⅰ. Definition 268
Ⅱ. Requirements 268
Ⅲ. Effect 269
Ⅳ. Violation of the Duty of Preferential Rehiring 270
1. Definition
2. Specific meaning of the duty of preferential rehiring
3. Effect of violation of the duty of preferential rehiring
Restriction on Dismissal: Restriction on the Timing of Dismissal
Ⅰ. Legal Provision 274
Ⅱ. Period of work suspension for medical treatment due to occupational accidents 275
1. Definition
2. Periods when 'suspension of work period for which dismissal is restricted'
Restriction on Dismissal: Advance Notice of Dismissal
Ⅰ. Definition 277
Ⅱ. Exclusion from the Advance Notice of Dismissal 277
Ⅲ. Details of the Duty of Advance Notice of Dismissal 278
1. Notice 30 days in advance
2. Payment of allowances
Ⅳ. Validity of Dismissal in Violation of the Duty of Advance Notice of Dismissal 279
Ⅴ. Paid Advance Notice Allowance of Dismissal as Unjust Enrichment upon Confirmation of Wrongful Dismissal 279
1. Issue
2. A case law
Restriction on Dismissal: Written Notice of Reason and Timing for Dismissal
Ⅰ. Definition 283
Ⅱ. Determining the Fulfillment of the Duty of Written Notification 283
1. Specifying the reasons for dismissal
2. Specifying the timing of dismissal
3. Notice in writing
4. Timing of written notice
Ⅲ. Effect of Violation 287
Provisions on Dismissal Consultation and Agreement
Ⅰ. Definition 288
Ⅱ. Interpretative Theories on Determining Justifiability 288
1. Issue
2. Precedents
Ⅲ. Validity of Dismissal in Violation 289
1. When the purpose is to refer to opinions on personnel decisions
2. When the purpose is to reach an agreement with the labor union
Submission of Resignation Letter Based on Untrue Intention
Ⅰ. Definition of Dismissal 292
Ⅱ. Expression of Untrue Intention under Article 107 of the Civil Act 292
1. Definition
2. Application of Article 107 of the Civil Act to labor relations
Ⅲ. Distinguishing True and Untrue Intentions 293
1. Basic approach in case law
2. When the worker had no choice but to submit the resignation letter under the employer’s directions
3. When the worker determines that submitting the letter of resignation is the best choice in the circumstances at the time
4. Interim Conclusion
Nature of Expression to Resign and Withdrawal of Expression to Resign
Ⅰ. Definition 296
Ⅱ. Distinguishing between Notice of Termination and Offer to Terminte based on Agreement 296
1. Notice of termination and offer to terminate based on agreement
2. Criteria for distinguishing the two forms
Ⅲ. Withdrawal of Termination Notice 298
Ⅳ. Withdrawal of the Offer to Terminate based on Agreement 299
Wrongful Dismissal and Administrative Remedies
Ⅰ. Dualism: Administrative Remedies and Judicial Remedies 300
Ⅱ. Relief Procedures of the Labor Relations Commission 301
Ⅲ. Benefit of Relief 302
Ⅳ. Details of the Relief Order of the Labor Relations Commission 304
1. Definition
2. Reinstatement to the original position
3. Wage-equivalent payment
4. Scope of the amount equivalent to wages
5. Interim income deduction
Wrongful Dismissal and Legal Relief
Ⅰ. Definition 311
Ⅱ. Whether Wrongful Dismissal Directly Constitutes Tort 312
Ⅲ. Requirements for Wrongful Dismissal to be Tort: Intentional Act or Negligence 312
1. Definition
2. Deviation or abuse of disciplinary discretion
3. Dismissal due to disguised business closure
Ⅳ. Retroactive Wage Claim and Damage Claim 314
Ⅴ. Claim for Compensation for Mental Sufferings Caused by Torts 315
Legal Restrictions on the Use of Fixed-term Workers
Ⅰ. Definition of Fixed-term Worker 316
Ⅱ. Legal Restriction on Using Fixed-term Workers 316
1. Definition
2. Effect of use in excess of the use period
Ⅲ. Exception: Each Subparagraphs of the Proviso to Article 4, Paragraph 1 of the Fixed-term Worker Act 318
1. Subparagraph 1: Completion of a project or a specific duty
2. Subparagraph 5 of Article 4 of the Act, Article 3(2)-1 of the Enforcement Decree: Provision of jobs by the national or local governments
3. Subparagraph 6
Ⅳ. Method of Calculation of Total Period of Use 321
1. Existence of both application period and exception period
2. A gap between repeatedly concluded employment contracts
3.When there is no gap period between repeatedly concluded employment contracts
Restrictions on Interpretation of the Use of Fixed-term Workers: Before the Enforcement of Fixed-term Worker Act
Ⅰ. Definition 325
Ⅱ. In case the fixed-term is a mere formality 325
1. Definition
2. Determination Criteria
Ⅲ. Cases where the Right to Expect Renewal is Acknowledged 326
The Course of Precedents the Enforcement of Fixed-term Worker Act
Ⅰ. Continuing Application of Term Formalization Jurisprudence 328
Ⅱ. Continued Application of the Jurisprudence of the Renewal Expectation Rights 329
1. Continued Applicability of the Jurisprudence of the Renewal Expectation Rights
2. Jurisprudence of the Reasonable Reason for Refusal of Renewal
3. Applicability to Persons Exempted from the Proviso to Article 4, Paragraph 1 of the Fix-term Worker Act
4. Renewal Expectation Rights and Interest in Litigation
Ⅲ. Jurisprudence of the Right to Expect Conversion to Full-Time Employment 332
Prohibition of Discrimination against Fixed-term Workers
Ⅰ. Definition 334
Ⅱ. Requirements 335
1. 'Subject to be compared’ under Article 8, Paragraph 1 of the Act
2. ‘Discriminatory treatment' under Article 2, Subparagraph 3 of the Act
Ⅲ. Burden of Proof 340
Request for Correction of Unfavorable Treatment of Fixed-term Workers
Ⅰ. Definition 341
Ⅱ. Statute of Limitations for the Application for Correction of Disrimination 341
1. Article 9, Paragraph 1, proviso of the Fixed-term Worker Act
2. Continuous discrimination
Ⅲ. Corrective Order 342
1. Definition
2. Details of the corrective order
3. Benefits of correcting discrimination
Temporary Placement of Workers
Ⅰ. Definition 345
Ⅱ. Determination of Temporary Placement of Workers 346
Ⅲ. Restrictions on Temporary Placement 347
Effect of Unlawful Temporary Placement
Ⅰ. Obligation of Employment 348
Ⅱ. Legal Issues concerning Direct Employment Obligations 349
1. Occurrence of direct employment obligations
2. Level relationship in the case of violation of direct employment obligation
User Company's Duty to Consider Safety
Ⅰ. Employer’s Duty to Consider Safety 353
Ⅱ. User Company’s Duty to Consider Safety 353
Fatal Accidents Punishment Act
Ⅰ. Implementation of the Fatal Accidents Punishment Act 355
Ⅱ. Key Concepts 355
1. Fatal industrial accident
2. Fatal civil accident
Ⅲ. Duty to Secure Safety and Health 356
Ⅳ. Punishments for Business Owners and Directors 357
Ⅴ. Application 358
Workplace Harassment
Ⅰ. Definition 359
Ⅱ. Criteria for Determining Workplace Harassment 360
Appendix 363
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