근로계약법제의 도입을 위한 기본원칙과 정책과제 - 개별성·유연성·명확성의 3대 원칙을 중심으로-

이정 ( Lee John ) 한국외국어대학교 법학연구소 2011 외법논집 Vol.35 No.1

The trend and prospect of modern society has brought with it many changes as it is very unpredictable and complicated. With the current employee environment, hiring type and labor relationship is being very individualized and diversified. However current labor law is still based upon typical labor relationship and it seems very rigid to apply in the labor market as it has still limits. It is required three features which are individuality, flexibility and clarity from labor contract law to prescribe of untypical employee environment with more secure and stable way in the modern society. It means that we need to establish civil rules regarding employee relationship to be geared towards the specific needs of its modern employee environment. According to case law and common ground on principles which is basic ideology of employee relationship, it is required to establish civil rules regarding the decision and a change of policy. It should be set explicit regulations to raise its predictability of worker, employers and public. This appears an international phenomenon as though Germany is being discussed about funds and introduction of labor contract for several years as an alternative and China and Japan already had decided to appropriate labor contract in 2007. This paper takes positive outlooks to introduce needs of labor contract as methodology which could ensure its individuality, flexibility and clarity. Therefore, this study is also to analyze the basic principals and contents of labor contract which is suitable for Korea by reviewing precedent study and to consider about legislation subject for introduction.

구조개혁(構造改革)과 노동법개정(勞動法改正) -「선진화방안(先進化方案)」중 대체근로(代替勤勞) 및 해고관련(解雇關聯) 규정(規定)을 中心으로-

이정 ( Lee John ) 한국외국어대학교 법학연구소 2005 외법논집 Vol.18 No.-

Provoking a sharp outcry from organized labor, the government unveiled on September in last year a comprehensive blueprint aimed at dramatically reforming Korea's labor climate. The Labor Ministry proposal, if adopted as amendments to present labor laws and regulations,would likely shift the balance of power more in favor of company managers. Entitiled “A Proposal for Modern Labor Relations,” the blueprint aims to give management greater authority in dealing with labor conflicts. It will also check the power of labor unions at large businesses and public companies, while strengthening the rights of individual workers. Many of the legal restrictions that discouraged attempts by employers and unions to resolve their differences will be abolished. The Korean Confederation of Trade Unions said in a statement the proposal strengthened only management power against employees and would intensify labor conflicts. Business interest groups generally welcomed the proposal, but said some aspects needed to be changed. Strengthening management abilities to respond to strikes, the plan proposes to allow employers to lock out striking workers regardless of the legalities of union actions. Employers have been prohibited from locking out workers during illegal strikes, with the government fearing such action would further fuel conflicts. However, offensive lockouts by employers - before unions go on strike - would continue to be prohibited. In other proposals, the management of public corporations and other organizations that affect the public interest would be able to hire replacement workers or engage subcontractors to continue operations when their workers went on strike. Employers would also be able to call in police at the earliest sign of law-breaking by striking workers, such as occupying company facilities, disrupting operations by replacement workers, and damaging property. The proposal would also require labor unions to have the finances independently audited. This article deal with “A Proposal for Modem Labor Relations” above mentioned focus on “replacement work” and “unfair dismissal”.

일본의 비정규직에 대한 고용정책과 입법방향

이정(Lee, John) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.3

After the burst of the bubble economy, the number of atypical workers have been increased rapidly in Japan. Many employees preferred to employ atypical workers rather than regular workers to reduce cost and dismiss them easily. As a result, about 30 percent of whole worker are estimated atypical workers. Atypical workers consist of 4 parts; fixed-term workers, dispatch workers, part-time workers and others (containing subcontract employees and employees in gray zone). In many case, atypical workers are treated discriminatingly because of their status. So, Japanese labor relation laws have some rules to protect employees from unreasonable discrimination by employer. However, in Japan, there is no compulsory clauses which fixed-term employment contract is deemed to non fixed-term employment contract if employer use fixed-term employee over 2 years. In Japan, labor law not only respects declaration of intention between employer and employee but also don't like to regulate employment contract if possible. In Korea, atypical workers has been increased more rapidly than Japan since economic crisis in 1997. In now, almost half of whole workers are atypical workers and also they have some discrimination in labor conditions compared with regular workers. Therefore, Korean government has tried to get rid of unreasonable discrimination against atypical workers. As part of government’ trying, in the end of 2006, Act of Atypical Worker’s Protection (AAWP) had been passed the National Assembly. According to AAWP, the duration of employment of fixed-term worker is restricted within two years and if the employment of fixed-term worker excess two years, the worker deem to be employed by non fixed-term employment contract except rare cases. Revised Dispatched Work Act has also same kinds of clause. If employee use dispatch worker over two years, employer has to employ the worker. If not so, the employer will be punished. Any worker who was treated discriminatingly because of their status can appeal to the Labor Relations Commission. If the Commission judge think that the appeal is unreasonable, may order to quit discriminating against atypical worker and also order monetary compensation. As a result of these rules of AAWP are applied to atypical employment, however, many atypical workers have lost their jobs. In other word, AAWP is very strict and mechanical, the purpose of legislation is not realized. So, in recent, Korean government try to revise AAWP in order to adapt real employment environment. A Research of on employment policy and legislative direction of Japanese atypical workers is very useful to us for revising AAWP and policy making of atypical worker.

도급과 파견의 구별기준에 관한 법리

이정(John Lee) 한국비교노동법학회 2015 노동법논총 Vol.34 No.-

유럽연합(EU)와의 자유무역협정(FTA) 체결에 따른 노동서비스 개방에 대한 연구 -영국·독일·프랑스의 교육훈련제도 및 인력공급제도를 중심으로-

이정 ( Lee John ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.29 No.-

Free Trade Agreement (FTA) has become one of the most highly debated issues in global society. FTA is to bring down all or certain trade barriers including tariffs and customs exclusively among the members of the nations to allow the goods and services to be traded freely. Compared to WTO which is a multilateral trade system to ensure the most favored nation treatment among all members, FTA is more of bilateral or regional preferential trade system among the members or the region. FTA, in general, is considered to be able to open a bigger market so that investments and exports of products and services with comparative advantages would be encouraged, enhanced, and eventually create larger trade productivity. However, the downside of it is that relatively smaller industries of either party might have to close down the business due to their far less competitiveness in the market. The EU is finally engaging seriously with Asia. While its official trade priority is the successful conclusion of the Doha Development Agenda (DDA), the EU announced in April the opening of negotiations on three bilateral free trade agreements (FTAs) with the Association of Southeast Asian Nations (ASEAN), India and Korea. So what's in it for Korea? Korea as well as the EU, has much to gain from an FTA. The EU is larger and richer than the United States, so the trade potential is that much greater. From a strategic viewpoint, the commercial presence of the EU in Asia would also counterbalance the influence of the United States and the dominance of China. But more importantly the EU's sharply different social model compared to that of the United States influences the EU's attempt to ensure that any FTA contains social clauses covering sustainable development and core labor standards. Another issue is the problems of opening of labor market. As is generally known, a worker can move in EU precincts freely. As a result, workers from a cheap place to a high place of personnel expenses come to move. In addition, a system to regulate dispatch labor and contract labor is got ready. In contrast, the preparations that possessed it for Korea and the FTA conclusion with EU are insufficient because atypical labor protection law and dispatch labor law were got ready recently in Korea. After FTA with EU was concluded with Korea, if EU side demand the opening of the labor market from Korea side, it is expected when various problems produce it. In or the to solve such a problem, A study about a worker supply systems and education training systems in the major countries among EU, such as the U.K., Germany and France. It seems that this research sponsors one suggestion for the problems solving that I took up in the above.

노조전임자에 대한 급여지급관행과 법적 문제점

이정(Lee John) 한국노동법학회 2008 노동법학 Vol.0 No.28

우리나라 노동조합의 경우, 조직규모가 작고 재정기반이 열악한 기업별노조가 많다는 특수성을 고려할 때, 전임자에 대한 급여지급은 원칙적으로 금지하되, 전임자가 순수하게 회사업무에 종사하는 경우(예컨대 노사협의회나 고층처리위원회에 참석하는 경우 등)에는 일종의 수당의 형태로 금전적 보상을 해주는 것도 우리나라 노동조합의 재정적 취약성을 보완하는 하나의 방법으로 생각할 수도 있다. 이러한 견해는 노동조합의 자주성을 크게 해치지 않으면서도 한편으로는 재정이 열악한 노동조합도 존립할 수 있도록 하여 노사가 상생의 길을 모색한다는 점에서는 설득력이 있다. 하지만 전임자의 특정행위를 ‘순수한 노조업무’와 ‘회사업무’로 일도양단하기가 간단하지 않을 뿐만 아니라, 이를 계량화하여 금전적으로 보상하는 것도 그리 쉽지 않다. 또한 우리나라 노동법이 ‘노사자율’과 ‘노사대등’을 근간으로 하여 전임자에 대한 임금지급을 원칙적으로 금지하고 있는 입법취지에 비추어 전임자의 특정행위에 대해 금전적 보상을 하는 것은 그 명칭과 형태만 다를 뿐 사실상 임금을 보상하거나 또 다른 형태의 부당노동행위를 법인(法認)하는 결과를 초래할 수도 있으므로, 이를 노사 간의 타협(의무적 단체교섭이나 쟁의행위)의 대상으로 하는 것에 대해서는 신중을 기할 필요가 있다고 생각한다. The matter of trade union representatives' wage payment has been hot issue in Korea labor legislation history and labor movement history. According to Korean Trade Union Law, that kind of union representatives' wage is prohibited as unfair labor practice containing yellow-dog contract, disadvantageous treatment, refusal to bargain collectively, giving financial support and retaliatory disadvantageous treatment and domination and interference. And Trade Union Law also forbid trade union representatives' wage payment excepting unfair labor practice provision as above mentioned. In spite of that, trade union representatives' wage payment has been remained until now as a kind of labor relation past practice in many companies. Meanwhile, this kind of labor relation past practice was problem between employee and trade union in Japan. Although Japanese Trade Union Law also prohibit trade union representatives' wage payment as unfair labor practice like Korea, that kind of past practice was remained as an inappropriate one(called Yami-Kankou). Japanese courts decided continuously that Yami-Kankou is illegal. After the judgements, employees and unions became to quit Yami-Kankou gradually. Reviewing past Japanese experience of trade union representatives' wage payment give us some clews to solve our problems. As especially, korean Labor Law and Labor Relation Systems are very similar to Japanese law and systems, researching on Japanese case law and labor management of Japanese company is very useful to settle the question pending between employee and trade union in Korea.

집단적 노사관계법의 변천을 통해서 본 노사자치의 특징과 한계

이정(Lee, John) 한국노동법학회 2013 노동법학 Vol.0 No.47

일본 노동계약법의 성립배경 및 주된 내용·논점에 관한 연구

이정 ( Lee John ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.32 No.-

In recent, Japanese labor circumstance and employment practice was changed drastically. Especially, individualization of workers become a kind of trend and collective decision systems are not worked any longer. Therefore Japanese government consisted the labor policy making committee with some scholars and lawyer who represent labor and management. The committee reported the result of research in 2005. Eventually, Japanese parliament revised the bill that the committee proposed and enacted Labor Contract Law at the end of 2007. The Labor Contract Law was consist of only 19 clauses, but the law regulates many kind of the important principles and rules of labor contract. Otherwise, labor union and some scholars criticize the law because it protects management side. Korea has also same kinds of labor problems as Japan. Korean government and researchers are interested in Japanese Labor Contract Law. This paper is the research of Japanese Labor Contract Law. In my paper, I examined the problems of enforcing Japanese Labor Contract law and suggested the matters to be attended to make a labor contract law in Korea.

정년연장에 따른 노동법상의 쟁점과 과제

이정(John Lee) 한국고용노사관계학회 2014 産業關係硏究 Vol.24 No.1

작년 4월에 국회 본회의에서 소위 ‘법정 정년 60세’를 규정한 ‘고용상 연령차별금지 및 고령자고용촉진법에 관한 법률’(이하 ‘고령자법’)이 통과되면서 우리나라에서도 정년 60세 시대가 시작되었다. 하지만 우리나라의 경우, 철저한 준비를 거쳐 점진적으로 정년을 연장해 온 외국과는 달리, 아무런 준비없이 전격적인 정치적 타협으로 정년법제를 도입한 만큼, 60세 정년제가 연착륙하기 위해서는 선결과제들이 다방면에 산적해 있다. 본 연구에서는 그 중에서도 노동법상의 쟁점과 문제에 포커스를 맞춘 다음, 문제제기를 하는 차원에서 몇 가지 논점에 대해 검토를 하였다. 첫째, 우리나라의 경우에는 일정한 연령에 달하면 일률적으로 퇴직을 하게하는 소위 강제퇴직제를 두고 있는데, 이러한 제도가 과연 법적으로 문제가 없는지에 검토한 다음, 선진 외국에서는 정년에 대해 어떻게 규제하고 있는지에 대해 살펴보았다. 둘째, 정년연장에 따른 주요 법적 쟁점에 대해 살펴본 다음, 이에 대한 개선책을 시론으로 제시하였다. 본고의 결론을 간단하게 요약하면 다음과 같다. 첫째, 비교법적 연구로부터는 미국이나 영국처럼 일률적 정년제를 연령차별로 보아 이를 폐지하는 것은 다소 시기상조라는 생각이 든다. 왜냐하면 우리나라의 임금체계가 연공급적인 성격이 강하게 남아 있고 고령자 개인의 능력이나 적격성 등을 평가하여 퇴직자를 선별하는 것보다는 연령을 기준으로 하는 것이 더 합리적이고 공정하다는 노사 간 인식에 비추어 볼 때, 당분간은 정년제의 유효성을 인정할 수밖에 없다고 생각된다. 둘째, 60세 정년제를 정착시키기 위해서는 고령자의 고용형태 및 근로조건을 유연하게 운용할 필요가 있다. 구체적으로는 정년연장에 따른 기업의 경제적 부담을 고려하여 임금피크제를 비롯하여, 퇴직금 중산청산, 자회사 등과 같은 관련기업으로의 배치전환, 시간선택제의 등의 제도를 적극적으로 활용할 필요가 있다. 셋째, 고용형태 및 근로조건에 있어 유연성을 추구하다보면 자칫 고령근로자들의 삶의 질이 저하될 우려가 있으므로, 고용형태의 변경이나 근로시간 단축 등으로 인하여 감소되는 소득분에 대해서는 이를 보상하는 제도 설계가 필요하다. 아울러 고령근로자들에게 적합한 직무 및 직종을 개발하고, 경우에 따라서는 직업훈련을 통하여 새로운 환경에 적응할 수 있도록 지원할 필요가 있다. With inauguration of the new Korean government, the extension of the retirement age has become an ever-growing key policy in Korea. When considering the current situation of aging population, it inevitably needs measures for the soft landing of the retirement age of 60. However, as we can see from the Japanese experience to increase the retirement age from 60 to 65, imposing the extension of the retirement age on only employers might lead to erode the competitiveness of company, and to erupt the gulf between the generations surrounding jobs for young people as well. Thus, a more careful approach is needed to deal with this issue. In particular, unlike Japan, although Korean companies set the retirement age for their workers in the collective agreement or employment rule, the companies are failing to keep the retirement age. Even though 65 year-old retirement age rules will be introduced, there is some question as to how effective the rule will be. Therefore, we should let the Japanese experiences be a good lesson to Korean society in order to establish the reasonable and effective system. This paper aims to examine the legal issue and problems with regard to 60 year-old retirement age from the perspective of labor law. The main arguments are as follows: First, to settle the 60 year-old retirement age system, it necessitates operating the older worker’s employment form and working condition flexibly. More specifically, when considering the employer’s circumstances so as to ease financial burdens, it is imperative to actively employ the systems such as wage-peak system, interim payment of retirement, job displacement to an affiliated company, and flexible work schedule. Second, since when seeking the flexibility in the employment form and working condition, there are concerns of decreasing the older worker’s quality of life. Therefore, it needs to build the system that can compensate the reduction in income due to the change of employment pattern and the reduction of working hours. In addition, it is necessary to develop the job duties and occupations that are suitable for the older workers. In some cases, it also requires supporting the older workers to accommodate to new environments through vocational training. Lastly, when it comes to the speed of aging population in Korea, the legislation of 60 year-old retirements is timely. Different from other countries such as US, UK, Germany, France, and Japan, however, Korean society enacted the law without the systematic and delicate preparations towards the extension of retirement age. Therefore, there are still many problems and tasks to be dealt with. There are only two years before taking effect the retirement age of 60. Of course, during the two years, it is urgent to create legal supplements regarding the above-mentioned discussions. Moreover, in order to prepare for the further aging population and the prolonged life expectancy, we are required to prepare beforehand for the 65 year-old retirement age and over. In order to cope effectively with the period of longevity of a hundred years, increasing retirement age is not an option but an obligation.

일본 복수노조와의 자율교섭과 노사관계

이정(Lee John) 한국노동법학회 2009 노동법학 Vol.0 No.32

Korean Union Labor Law had denied plural union system until 1997. In other word, if a labor union was established in a company already, new labor union that the member of labor union are duplicated can not to be established in same company. In this point, Korean Labor Union Law contained unconstitutionality that violate the right to organize which Constitution Law guarantee. Therefore, many scholars and labor unions have argued to eliminate the clause that prohibited new labor union in same company. In result, when Labor Union law was amended in 1997, the clause that had been prohibited new labor union was removed. So, there is no problem to establish new labor union in same company. In the spite of that, the additional rule of Labor Union Law has a grace period of the application of the law and plural labor union system is prohibited until the end of this year. However, the grace period will be expired to end of this year. Beginning next year, any employees can organize new unions in same company. In this way, if many kinds of labor unions are organized suddenly, many employers and Korean Government worry about occurring a lot of labor disputes between labor unions and employers or other labor unions. So, Korean Government tried to unify plural labor union of collective bargaining. In Japan, plural labor unionism has been stabilized since Japanese Labor Union Law was enacted in 1946. All of labor unions have the right of collective bargaining in Japan. In this point, japanese collective bargaining system is very different from American collective bargaining system which only the labor union that won in the election has the right of collective bargaining with employer(exclusive collective bargaining system). In Japan, employer has to bargain in good faith all labor unions. If the employer not to keep neutral attitude, the action of the employer will be unfair labor practice. As you know, Korean labor law system and labor unionism are very similar to Japanese Labor Law and Unionism. So, it is very useful to research about Japanese Labor Law and Unionism.