노동법 현안 과제 – 이론과 현실의 괴리 극복방안을 중심으로

하갑래,송강직 노동법이론실무학회 2018 정기학술대회 Vol.2018 No.07

기간제근로계약에 있어 근로자의 계속근로기대법리

하갑래 한국경영법률학회 2009 經營法律 Vol.20 No.1

As the great increase in the number of fixed-term workers reached at the point of threatening stability of the labor market, the Act on the Protection, etc. of Fixed-term and Part-time Workers was enacted on the legislative fronts and legal principles regulating fixed-term workers have been developed through case laws and academic theories on the front of legal interpretation. In fact, cases where fixed-term workers anticipate continuing to work vary in types and characteristics. Nevertheless, case laws do not clearly distinguish those different cases, but deal with the requirements needed to establish legal principles and the effects of the principles broadly or comprehensively. Meanwhile, efforts are being made to form legal principles on ‘anticipated continuation of work relations,’ such as ‘right to expect renewal of a working contract’ or ‘right to refuse it’ through academic theories, though cases of different characteristics are explained without distinction in these efforts as well. Given the current situation, this thesis tried to categorize cases where fixed-term workers anticipate continuing to work, into a type of denying formation of a fixed-term contract, a type of recognizing the renewed employment term, a type of renewing a contract automatically, a type of anticipating renewal of a contract, and a type of concluding a working contract just in formality. Then it attempted to provide independent legal principles applied to each of those types. By explaining that a legal principle in each type has its own entity and purpose and constitutes a system linked structurally with each other, this paper put together those types under a boundary of ‘legal principle of anticipated continuation of work.’ It appears too early to categorize, conceptualize, systemize, or legislate into laws the legal principles on anticipated continuation of work relations of fixed-term workers, since the legal principles are still in the making. These attempts may be the process to complete the legal principles on anticipated continuation of work relations. Hopefully this thesis will contribute to activating discussion on the subject.

중국과 일본의 근로계약법제와 입법론적 시사점

하갑래 한국비교노동법학회 2008 노동법논총 Vol.13 No.-

In 2008, a labor contract law has entered into force in both China and Japan. In these two countries, individual disputes are greatly increasing due to the diversification of employment types, individual determination of working conditions, etc., in the labor market, and the legislation on individual labor relations focuses mainly on labor protection. These factors that caused both countries to introduce a labor contract law are common phenomena also found in Korea. As a result of a critical analysis of the experiences of the two countries, it was found that there are things to consider before introducing a labor contract law. First, the legislative purpose of such a law should not be to raise or lower the level of working conditions. Second, it is necessary to put in place a judicial system that can be relied upon to deal with individual disputes. Third, although what is included in a labor contract law should be decided after taking into account the circumstances of the country concerned, it is needed to eliminate causes of disputes by making the contents of the law as specific as possible. Under this assumption, this thesis makes a detailed analysis of the labor contract laws of China and Japan, and then suggests what should be legislated given the current situation of related implementation in Korea.

근로시간면제제도의 평가와 실천적 과제

하갑래 한국경영법률학회 2010 經營法律 Vol.20 No.4

The Time-off System, which was newly stipulated in the Trade Union and Labor Relations Adjustment Act on January 1st 2010 , is to be implemented from July 1st, 2010. Accordingly, the Enforcement Decree of the Act was amended on February 12th. The decision of the Time-off System Deliberation Committee on the maximum Time-off hours was notified by the Labor Minister on April 20th and administrative guidelines were announced by the Ministry of Labor on June 4th. This paper recognized and analyzed components of the system in ordinances, notification and guidelines which were prepared to implement the Time-off system, identified their short-comings and suggested ways to develop the system. The Trade Unions and Labor Relations Act stipulates the contents of a complicated Time-off system in a single paragraph under a single Article, suggesting a substantially abstract ideas on the system. This resulted in adding new contents to the Enforcement decree and administrative guidelines at a time when there was no ground for mandating the system and many restrictions to the system. The circumstance may lead to the possible infringement on the principle of autonomy in Labor and Management and engender differing views on the effect of stipulated measures. This paper has analysed such problems in details and suggested alternatives. It might be too early to discuss the amendment of relevant institutions since the Time-off system has only been ready to be implemented. In addition, few court cases or evaluations by academia have been accumulated. Therefore, this paper is expected to contribute to building upon the Time-off system based on common consensus through numerous discussions by raising questions to draw practical discussions on the system.

통상임금제도의 변화와 과제

하갑래 노동법이론실무학회 2012 정기학술대회 Vol.2012 No.1

기조강연

하갑래 한국고등직업교육학회 2005 한국고등직업교육학회 학술대회 논문집 Vol.2005 No.2

통상임금과 평균임금에 포함되는 임금의 판단

하갑래 단국대학교 법학연구소 2007 법학논총 Vol.31 No.1

외국인고용허가제의 변천과 과제

하갑래 한국비교노동법학회 2011 노동법논총 Vol.22 No.-

The Employment Permit System(EPS) has been designed in accordance with the following principles: guarantee employment opportunities for domestic workers; assure companies' rights to select employees; ensure transparency in selecting and introducing foreign workers; prevent the settling down of foreign workers; protect the rights of foreign workers; guarantee foreign workers' legal employment while preventing illegal sojourn and interruption of restructuring. The EPS carries great significance because with the implementation of the system, the issue of foreign workers employment became the domain of labor market policies instead of the realm of immigration. However, the 「Act on Foreign Workers' Employment, etc.」 has undergone technical revisions in order to make it easier for companies to hire foreign workers, and this has affected the principles of the EPS, requiring it to change. Since the Korean society is rapidly aging, the shortage in skilled workforce will become more severe. In this regard, the EPS should seek a structural change with a future oriented vision. Such changes should include guaranteeing the freedom to change workplaces, granting permanent residency, introducing a system to eliminate discrimination, expanding the participation of the public in making policy decisions, establishing a comprehensive foreign workforce policy that covers professionals, and implementing a policy to separate labor inspection from immigration administration.

휴일제도에 있어 근로조건 자율결정의 원칙과 한계

하갑래(河甲來) 서울대학교 노동법연구회 2009 노동법연구 Vol.0 No.27

The holiday system has changed little over the past 56 years since it was first established under the Labor Standards Act in 1953. So now it not only fails to respond to changes in the labor market but also has many structural problems piling up during its implementation. First, related provisions are scattered across various laws and regulations, without providing a clear definition of holiday. This causes confusion on how to apply statutory holidays and agreed holidays. Second, since a weekly holiday comes with pay only when the worker has perfect attendance during the week, it is difficult to calculate wages for absentees, part-time workers, etc. Third, there is no clear standard for granting weekly holidays, including the number of holiday hours, the interval at which they are granted, and a substitute for weekly holidays. Fourth, there is a huge controversy over the conditions one should meet to take a weekly holiday and the method of calculating holiday wages. Fifth, official holidays are recognized as agreed holidays (holidays granted under company rules), undermining the principle of equality and fairness. To address these problems, the Labor Standards Act has so far relied on court precedents, administrative interpretations and interpretations of relevant academic theories. However, such interpretations often present conflicting views, exposing their limitations in solving confusion in the labor market. In recent years, the paradigm of the Labor Standards Act has shifted to pursuing reconciliation between work and family life. This change is expected to increase interest in the holiday system among workers, employers and the government. Therefore, it is necessary to establish a logically consistent and unified standard to deal with the structural contradictions that have appeared during the implementation of the holiday system. The new direction the holiday system will take should be towards making clear the principle of autonomously setting working conditions and its limitations. Furthermore, to solve the structural problems with the dismissal system, as well as the enactment of a special law, an alternative legislative theory needs to be considered.

개별적근로관계에서의 근로자의견 수렴제도에 관한 연구

하갑래(Ha, Gap-Rae) 한국비교노동법학회 2011 노동법논총 Vol.23 No.-

Individual Labor Relations Law provides various types of system to receive employee opinions. The law prescribes a majority trade union, majority employees, representatives of majority employees, and labor and management committee as parties to decide on employee opinions. It also stipulates written agreement, consent, and consultation as the way to provide opinions. Based on the observation that complicated systems confuse parties involved and drop trust on the contents of the system, this research detects issues on the overall system to receive employee opinions and suggests how to improve the system. The system in general is not unified and organized and in part is lacking in legal principles. Given that, this study presents as a solution that the labor and management committee system will be developed into the ‘labor and management agreement system’ to be equipped with unity and that individual issues will be addressed in the process of development. Since this approach has not been attempted, this research may risk not reflecting all the necessary elements for analysis or not resolving incongruity between analyzed elements. I hope that this study will be the basis for the follow-up research in future which will provide an analysis and an alternative solution of more complete level.