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홍기갑,이병운 원광대학교 법학연구소 2009 圓光法學 Vol.25 No.2
Arbitration is the predominant method of resolving labor disputes involving employees lovered by collective bougainning agreement , and is in growing use for nonunion employees . Typically , the agreements include a prohibition against dismissals without just cause. The arbitration tribunal decides whether just cause existed. Federal law developed under § 301 of the labor management relation act preempts state law. but state courts to apply this body of common law . Two overriding principles are those, one is that disputes are presumed to be arbitrable and another is that arbitration awards should not be invalidated except in extra ordinary circumstances.
홍기갑,조경신 한국기업법학회 2006 企業法硏究 Vol.20 No.3
Contract theories to restrict on dismissal at willRule in U.S.A.
違法爭議行爲에 대한 損害賠償責任 構成의 問題點 및 代案
홍기갑,박근배 한국기업법학회 2005 企業法硏究 Vol.19 No.3
Whether an industrial action is legal or not is the basic standard of the Responsibility for compensation for damages in civil affairs, so the court, in deciding the legitimacy of it, should judge prudently after examining the specialities of labor law and common law comprehensively. Meanwhile, in connection with the improvements of Provisional attachment and Reference system, there is an insistence that Provisional attachment should be restricted to the wages of employee and union dues. But we can't accept that assertion because it may foster illegal industrial action. In case of Reference system, it is necessary that we judge its effectiveness by comparing and considering the benefits of reference of employee, the flexibility of employment and the influences in the whole field of economy.
해고제한의 법리로서 불법행위이론 : 미국의 공공정책 불법행위 이론을 중심으로 mainly on the public policy torts theories U.S.A
홍기갑,김용남 한국기업법학회 2004 企業法硏究 Vol.17 No.-
Courts in most states recognize a private right of action for dismissals that jeopardize specific public policy interests of the state. This category of tort liability is called the public policy tort. The public policy tort, is a specific application of the prima facie tort. The public policy tort permits recovery by a dismissed employee only when the dismissal violates a clear public policy of the state. The prima facie tort allows recovery if the employer dismissed the employee with malice and without justification. Malice is a legal term of art that means little more than the mental state that motivates harmful conduct in the absence of justification. Intentional tort principles applicable to these categories permit a plaintiff to recover only by showing that a legally protected right of the plaintiff was harmed by an act of the defendant and that the defendant lacked justification for his act. The public policy tort theory expands the range of circumstances in which an employee may recover without having to establish the employer's conduct or state of mind sufficiently to satisfy traditional tort categories such as intentional interference with contractual relations, intentional infliction of emotional distress, fraudulent misrepresentation, defamation, or invasion of privacy. None of these traditional theories permitted the employee to recover for the dismissal itself. The newer public plicy tort theory permits a dismissed employee to recover for the dismissal itself. Public policy tort cases require courts to balance the interests of the employee, employer, and society under formula presented in § 870 of the Restatement(Second) of Torts.
홍기갑 한국기업법학회 2002 企業法硏究 Vol.10 No.-
As a constant adjustment to the market circumstances, some firms increase the size of some work groups and shrink the size of others. Labor is important factor of production for most products and services, downsizing means terminating employment. Firms must avoid discriminating in selecting the persons chosen for involumtary termination or offered inducement, and also he equally vigilant to avoid discrimination based on race, gender, mental or physical disability, national origin or religion. All of these forms of discrimination violate the law when they are conscious and intentional. The federal WARN requires employers who are closing plants or laying off employees to provide advance notification for affected employees. When affected employees are represented for collective begaining purpose, employees have significant obligations Under the NLRA. Those obligations include the duty to bargain over the effect of any downsizing decision.