[기조발제] 공정사회와 독일 법조인 양성제도

이광택(Kwang Taek Lee) 국민대학교 법학연구소 2015 법학논총 Vol.28 No.1

勞組專任者의 地位 및 處遇

李光澤(Lee Kwang-Taek) 국민대학교 법학연구소 2007 법학논총 Vol.19 No.-

The legislation on the so-called "Industrial Relations Advancement" (revisions of three laws: Trade Unions and Labor Relations Adjustment Act, The Act on Worker Participation and Promotion of Cooperation, and Labor Standards Act), which has been pressed for as part of the Industrial Relations Reform program, was passed at the plenary session of the National Assembly on December 22, 2006 and is scheduled to take effect in July 2007. The major contents of the legislation include postponing the enforcement of the articles on permission of multiple enterprise-level trade unions and ban on employers' payment of wages to full-time unionists for three years from January 1, 2007 to December 31, 2009 by way of rewriting of the addenda of the law. During the grace period, labor, management, and the government are to have intensive discussions at the Tripartite Commission on measures to minimize confusion due to permission of multiple enterprise-level trade unions, and measures for financial independence of unions so that they can assume the payment of wages to full-time unionists. The Genesis of the regulation of the ban on employers' payment of wages to full-time unionists goes to the so-called Reform Drive of President Kim Young-Sam's Government in 1996. On December 26, 1996, the Government initiated the amendment of the Labor Relations Law, which triggered the nationwide protest actions of the unionists, intellectuals and the civic movement. As a result, the amendment of the Labor Relations Law in 1996 became practically null and void, and the new legislation was accepted in on March 13, 1997. However, the regulation of the ban on employers' payment of wages to full-time unionists survived the rewriting of the law with a grace period of five years. The grace period, which was to end on December 31, 2001, was once prolonged to another five-year period in February 2001 with a Triparte Agreement with the Federation of Korean Trade Unions(FKTU). The second national center, the Korean Confederation of Trade Unions(KCTU), was ignored at the round table. The postponement of the enforcement of the ban on employers' payment of wages to full-time unionists in December, 2006 is the third measure to delay the enforcement of the rule, so that it made the total grace period 13 years. This time again, the KCTU was not invited to the agreement of the postponement. As regards the issue of the payment of wages to full-time union officials the ILO Freedom of Association Committee noted in March 1998 that the KCTU considers that the effect of this provision will be harmful for the union movement in Korea which is mostly characterized by small enterprise-level unions with very limited resources. The Committee observed that the FKTU, for its part, is of the view that this provision should be repealed since this issue is a matter to be dealt with by employers and unions and not to be determined by legislation. And the Committee noted that while some management representatives appear to be unconcerned about the current practice of paying wages to full-time union officials, others have strong contrary views which are reinforced by apprehension concerning the effects of the introduction of multiple trade unions at the enterprise level. Finally, the Committee considered that the prohibition of the payment of full-time union officials by employers is a matter which should not be subject to legislative interference. It therefore called upon the Government of Korea to repeal section 24(2) of the TULRAA. In the meantime, the Supreme Court of Korea has difficulties to interpret the rules of the full-time union officers with the addenda. In research of the laws and practices in Germany and the United States, it was found out that there are positive rules which allow the payment to the full-time union officers, not the negative rules. In view of the international and comparative labor law, the further postponement of

勤勞者派遣法의 問題點과 改善方案

李光澤(Lee Kwang-Taek) 국민대학교 법학연구소 1999 법학논총 Vol.11 No.-

노동법 60년의 회고와 전망

이광택(Lee, Kwang-taek) 한국비교노동법학회 2013 노동법논총 Vol.29 No.-

직장폐쇄에 대한 연구

李光澤(Lee Kwang-Taek) 국민대학교 법학연구소 2006 법학논총 Vol.18 No.-

An employer is said to "lock out" its employees when, for tactical reasons, it refuses to utilize those employees for the performance of available work. The Act on Labor Union and Labor Relations Adjustment does not by its own definition declare the lockout lawful or unlawful(Art. 2, No. 6, LULRAA). The legality of lockout depends on the application of the general provision of Art. 46 LULRAA to the facts of any given case. Thus, if the purpose of the lockout is to punish employees for joining or designating a labor organization or otherwise to obstruct their free choice of a representative, this is clearly "discouragement of union membership" through the intentional deprivation of job opportunities and thus a violation of Art. 81 LULRAA. Other lockouts may, however, be motivated by legitimate business reasons, These have been the subject of evolving doctrine in the courts. The three most common lockouts might be labelled, somewhat conclusorily, the defensive-economic lockout, the defensive-multiemployer lockout and the offensive bargaining lockout. The court has traditionally held, that it is legal for an employer to lock out its employees when it is reasonably fearful of a strike which, it called at a time chosen by the union, will result in inordinate harm to the business, property, goods or goodwill of the employer. The defensive-economic lockout is, however, an inherently unstable concept. It is difficult indeed to differentiate "usual" from "unusual" economic losses. Moreover, since the union will normally utilize the work stoppage to cause serious inconvenience and loss to the employer. the "defensive" lockout was used by the employer to maximize its own bargaining advantage and minimize that of the union, and to achieve hereby a more prompt settlement on more favorable terms: that is precisely the object of the offensive or bargaining lockout as well. The lockout designed to pressure a union into a prompt and favorable settlement at the negotiation is regarded as illegal. The employer may argue that the peaceful lockout is the analogue of the peaceful bargaining strike, but such a lockout interferes with the employees' right to strike and punishes the employees for adherence to their bargaining position, thereby violating Art. 81 LULRAA. The nonstruck employers in a multiemployer bargaining unit do not violate the labor law when they lock out their employees and, to compete with the struck employer which remains open with temporary replacements, hires temporary replacements of their own. The question remains whether a single employer can lock out its employees in support of its bargaining position and then proceed to operate with replacements, either temporary or permanent either from within the plant or without. An employer will typically hesitate long before implementing a lockout. Like a strike, it closes down the employer's operation, and its advantage lies only in usurping union's control over timing. An employer might prefer to steal a march on the union by exerting lockout-like pressure on employees while at the same time keeping the plant in operation and accruing profits. This could be done, for example, by locking out only part of the workforce within the bargaining unit rather than all, or by keeping all employees at work but subject to reduced economic benefits pending settlement of negotiations. The "partial lockout" is a rather new and not frequently litigated device, and its legality is uncertain at best.

‘사회적기업육성법’제정 및 시행 후의 발전방향

李光澤(Lee Kwang Taek) 국민대학교 법학연구소 2008 법학논총 Vol.20 No.2

For more than two decades, social enterprise movements in the United States and in Europe have taken on growing importance. Broadly defined as the use of non-governmental, market-based approaches to addressing social issues, social enterprise has become an increasingly popular means of funding and supplying social initiatives around the world. Yet while the trend and its ultimate objectives are similar, there remain vast differences in the conceptualization of social enterprise among different world regions. These differences stem from contrasting forces shaping and reinforcing the movement in each region. According to J. A. Kerlin, the concept of social enterprise in the United States is generally much broader and more focused on enterprise for the sake of revenue generation than definitions elsewhere. This remains true even when considering the definitional divide in the United States between academics and practitioners. In Western Europe, the trend toward social enterprise emerged somewhat later than in the United States and was focused on the simultaneous development of public interest services, and diversification of revenue generation in the third sector. Most social enterprises in Western Europe operate under the legal form of either a nonprofit association or a cooperative. Social enterprises are established as associations in those countries where the legal definition of association allows a degree of freedom in selling goods and services on the open market. In countries such as Sweden, Finland and Spain, where associations are more limited in this regard, social enterprises tend to take the legal form for cooperatives. In Korea, the Social Enterprise Promotion Act was enacted on December 8, 2006 and became effective on July 1, 2007. The social enterprise is defined as those enterprises which trade in goods or services for a social purpose through the employment of people from a disadvantaged community, and was recognized by the Minister of Labor. The legal form of the social enterprise is not limited to the non-profit organization. It ranges between association in the Civil Code and companies in the Commercial Code. The corporation of public interest, non-profit private organization, social welfare corporation, consumers' cooperation can be also social enterprise. The Minister of Labor can support the social enterprises with professional consultation for management, technique, tax, labor, accounting and other necessary information. The State or local autonomous governments can support the social enterprises by renting the state-owned or public land, and by reducing or exempting taxes. The criticism was raised to the recognition and promotion of the social enterprise by the government, because the social enterprises in the United States and Western Europe have appeared on the initiative of private organizations. It would be contradictory, if the government supports those activities in the field, where the government was not engaged. The requirement of social enterprise to employ people from a disadvantaged community is also difficult to be met, as those unskilled elderly people, women, disabled, most of whom were once excluded from the labor market, can hardly compete with the regular workers of the same business. Those problems have to be keenly observed in the implementation of the Social Enterprise Promotion Act and it will help the interest parties find the way to develop the young social enterprises in Korea.

노동법의 선진적 개정 방향

이광택(Lee Kwang-Taek) 국민대학교 법학연구소 2010 법학논총 Vol.23 No.1

A revised bill to the Trade Union and Labor Relations Adjustment Act(TULRAA) passed through the National Assembly on the first day of 2010. Legislated back in 1997, the controversial law calls for preventing employers from paying wages to employees working full-time for labor unions and allowing union pluralism at company level. The implementation of the law has been delayed for the past 13 years. According to the revision, after a grace period for preparation, the corporate payment for full-time union officials will be banned from July 2010 and the multiple unions at enterprise level will be allowed in July 2011. With the wage payment of full-time union officials banned, a paid time-off system is to be introduced. Under the system, employers are allowed to pay full-time union officials when their labor activities are considered "relevant to the improvement of labor-management relationship. Under the time-off system, the scope of work hour exemption of full-time union officials is confined to only labor-management joint activities (bargaining, negotiation, grievance handling, occupational safety, etc.) and activities for maintaining and operating unions. The phrase proposed by the ruling Grand National Party, ‘ordinary union operating activities set by the Presidential decree’ was deleted in the agreement and instead, it was expressed as ‘maintaining and operating activities for the development of sound labor-management relations’, stressing the ‘soundness of union’s activities’ for increasing membership and education. The revision bill in particular has articles that requests exceeding the time-off system cannot be used as a reason for strike by unions and also stipulates that ‘time-off system review committee’ should be established under the Ministry of Labor, composed of 15 members, five from each labor, employers and public interest groups, will decide on the upper limitation of the time-off system. The review committee is convened every three years and when labor and management fail to reach an agreement on the upper limit at the first place, then public interest members will decide on it. Even though union pluralism is allowed, the law stipulates that only exclusive single bargaining channel is allowed at workplace level in principle. Labor unions can decide upon who will be their representatives on their own. However, if they cannot decide, the union successfully garnering a majority of the total union members will be given the representative power. If there is no such a union, other minor unions will come together to make up a joint bargaining team. In addition, labor unions can resort to a labor dispute when more than a majority of members of labor unions which participated in the process of making up the single bargaining channel approves the dispute. The law made it a principle to have a single bargaining channel, however all unions can have bargaining power when employers agree. They also can have a separate industrial bargaining on the condition that employers agree. Also, in the case of industrial unions that have bargaining power as of the end of this year, bargaining channel unification will be implemented in July 2012, one year later than the implementation of allowing union pluralism. In addition, given that controversy may occur on the effectiveness of conditions are very different like non-regular workers, the labor relations commission will decide on the matter of separating their bargaining units. Almost three months are expected to take before unions and their employer start the negotiation after unions’ request for the employer to have a collective bargaining and unifying negotiating channels. A Presidential decree of the TULRAA was promulgated on February 12, 2010. Accordingly, the Ministry of Labor plans to compose the time-off system review committee and specify the limit on work-hour exemption by the end-July. Debates among tripartite partners are to bubble up in the 2010년 1월 1일 새벽 국회의장에 의해 직권 상정되고 한나라당이 중심이 되어 통과시킨 ‘노동조합및노동관계조정법(노조법) 일부개정안’의 골자는 노조전임자 급여 지급 금지와 복수노조 체제하의 단체교섭 등의 두 방향으로 그 시행에 따른 파급력은 매우 크다. 이번 노동법 개정으로 지난 13년간 유예되었던 노조전임자 임금 수령ㆍ지급 금지 규정은 6개월 후인 2010년 7월 1일부터 곧바로 전면 시행되는 것으로 하였고, 기업별 복수노조 허용은 그 유예기간이 다시 1년 6개월간 연장되어 2011년 7월 1일부터 시행되도록 하였으나 법개정이 국제노동기준과 노동기본권을 외면한 개악이라는 비판이 제기되었고 관련법이 재개정되어야 한다는 주장도 바로 나왔다. 개정 노조법은 기본적으로 노조활동의 기본이 되는 전임자 활동, 단체교섭 등에 있어서 결정적 권한을 사용자측에 부여하였다는 비판을 받고 있다. 개정 노조법 중 노조 전임자 급여 지급 금지에 갈음하여 등장한 근로시간면제 제도의 운영과 관련하여 노조의 조직력과 대응에 따라 다양한 편차가 발생될 것으로 전망된다. 복수노조 부분도 노조 활동에 결정적 제약이 될 수 있다. 개정법은 종전의 노조 전임자 급여 지급은 금지하되 time-off 제도를 통해 일정 범위 활동에 대한 유급처리를 가능하도록 하였다. 이를 위반하는 급여지급을 요구하고 이를 관철할 목적으로 쟁의행위를 하여서는 아니 되도록 하였다. 또한 개정법에 의하면 사업장 단위의 복수노조를 허용하되, 사용자가 동의하는 경우에만 복수노조 각각 개별교섭 가능하며, 사용자의 동의가 없을 때에는 교섭창구를 단일화해야 한다. 다만 현격한 근로조건의 차이, 고용형태, 교섭관행 등을 고려한 교섭단위 분리가 가능하다. 교섭창구 단일화하여 결정된 교섭대표노조(공동교섭대표단 포함)가 모든 교섭권한을 가진다. 교섭창구 단일화 절차에 따른 교섭대표노조 결정은 노조 자율적 단일화, 과반수 노조, 공동교섭대표단 순으로 이루어진다. 공정대표의무제를 도입하여 타 노조에 대한 불합리한 차별을 금지하였다. 헌법 제33조 1항 근로자는 단결권, 단체교섭권, 단체행동권을 가진다고 규정하여 노동3권을 보장하고 있는데, 개정 노동법 시행령은 교섭 방식, 교섭 시기 등을 사용자가 규정하도록 할 뿐 아니라, 노조법이 노사 자율에 의한 노사관계를 위해 최소한의 부분만을 입법하고 있는 것과 달리 구체적으로 노동위원회를 포함한 정부 개입을 최대화하여 노동3권을 형해화할 우려가 매우 크므로 법률상 기본권 침해 최소화의 원칙에 위배되며, 입법 위임 재량권 한계를 일탈했다고 할 것이다. 따라서 개정법은 ILO가 권고한 바대로 노사 자율의 원칙에 따라 재개정되어야 할 것이다.

中国 劳动法의 새로운 倾向

李光澤(Lee Kwang Taek) 국민대학교 법학연구소 2009 법학논총 Vol.21 No.2

2008년 1월 1일 발효된 중국의 ‘근로계약법(??合同法)’의 제정배경으로 후진타오(胡??) 국가주석이 이끄는 현 정부가 ‘조화로운 사회(和?社?) 건설’을 기치로 내걸고, 성장위주의 선부론(先富?)에서 균형성장과 분배, 형평을 강조한 균부론(均富?)을 강조한 것을 들 수 있다. 근로계약법은 1995년부터 시행된 ‘노동법(??法)’을 보충하는 것으로 서면노동계약 의무화, 수습기간, 퇴직금지급, 최저임금 준수 등 노동자보호에 관한 조항이 강화되어 중국에 진출한 외국기업들이 노사관리에 대해 한층 긴장하게 되었다. 중국의 근로계약법 제정이 주는 시사점은 중국 경제의 성장과 산업구조의 변화에 따른 노동자 권익 향상을 기하는 노동 관련 입법이라는 점에 있으므로, 장기적인 관점에서 이에 대한 연구가 필요하다. 중국의 외국인 투자 정책이 변화하고, 최근의 노동관련법 규정의 제정, 개정은 당국의 정책 중심이 ‘외자유치형’에서 ‘공정경쟁형’으로, ‘친 기업형’에서 ‘노동자 권익보호’로 전환하고 있음을 의미하는 만큼 ‘조화로운 사회건설’이라는 정책기조의 변화에 대한 이해도 필요하다. 중국은 또한 ‘취업촉진법(就?促?法)’을 공포하여 역시 2008년 1월 1일 시행하였다. 이 법은 시장경제 체제에서의 인력수급에 문제에 적극 대응하게 되었다. 한편 ‘노동쟁의조정중재법(?????解仲裁法)’이 2008년 5월 1일 시행되었는데 이 법은 근로계약법의 시행으로 노동분쟁이 크게 증가할 것이라는 예상을 전제로 그 역할이 특히 기대되고 있다. 이왁 같이 ‘근로계약법(??合同法)’, ‘취업촉진법(就?促?法)’ 및 ‘노동쟁의조정중재법(?????解仲裁法)’의 제정으로 향후 중국 노동입법의 근간이 될 4대 노동관계법 중 현재 심의 중인 ‘사회보험법(社?保?法)을 제외한 노동3법이 마련된 것이다. 취업촉진법이 근로의 권리를 실현하기 위한 기초를 제공하고, 근로계약법이 근로관계를 규범화하여 권리 의무 관계를 명확히 한 것이라면 노동쟁의조정중재법은 그 권리 실현을 위한 절차를 규정한 것이라 할 수 있다. 중국은 건국 초기부터 ‘공동강령(共同??)’과 ‘헌법(?法)’을 입법근거로 ‘노동조합법(工?法),’ ‘노동보험조례(??保??3)’ 등의 노동관계법을 제정하였으나 사회주의 시장경제가 확립됨에 따라 노동법의 조정 패러다임에 변화가 일기 시작했다. 즉 시장경제는 법치를 숭상하고 시장의 행위는 법치의 테두리 안에서 이루어져야 하기 때문에 시장경제 체제에 맞는 법률체계를 갖추는 것이 절박하게 요구되었다. 이것을 노동법이 국가본위 패러다임에서 사회본위 패러다임으로 전환하는 과정으로 볼 수 있다. 사회본위 패러다임 속에서 시장경제 관념이 뿌리 내리고 권리의식이 높아지면서 근로계약제도가 시행된 것이다. 근로계약제도는 국영기업부터 ‘노동법’ 규정에 따라 시행되었다. ‘근로계약법(??合同法)’은 근로계약 규정을 세분화한 것으로 노동법의 사법적(私法的) 속성을 중시하고 개인의 권리를 강화한 것으로 평가할 수 있다. 근로계약법의 제정으로 중국 노동법은 앞에서 본 바와 같이 진일보하고 있다 그러나 여전히 개별노동관계를 조정하는 데에서 크게 나아가지 못하고 있다. 근로자와 사용자 사이의 실질적 지위가 불평등한 상황에서 집단적노동관계에 나머지 역할을 부여하는 것이 향후 발전의 방향이 될 것이다. 그러한 의미에서 근로계약법에 규정한 단체협약에 관한 규정들은 많은 시사점를 주고 있다. China's legislature, the Standing Committee of the National People's Congress, passed a sweeping new labour law in June, 2007 that strengthened protections for workers across its booming economy, rejecting pleas from foreign investors who argued the measure would reduce China's appeal as a low-wage, business-friendly industrial base. This is the biggest change in Chinese labour law in the reform and opening period since the opening of the Baboo Curtain. It gives better legal protection to the vast majority of workers than the old system. The new Labour Contract Law(LCL), which became effective on January 1, 2008, also enhances the role of the Communist Party's monopoly union and gives more weight to the collective agreement system than earlier. The law is the latest step by President Hu Jintao to increase worker protections in a society that has emphasized rapid, capitalist-style economic growth over enforcing labour laws or ensuring an equitable distribution of wealth. The law requires employers to provide written contracts to their workers and employees can claim double salary for months worked without a contract for up to 12 months’ salary. It restricts the use of temporary workers and helps give more employees long-term job security. It also moves China closer to European-style labour regulations that emphasize fixed- and open-term employment contracts enforceable by law. It requires that employees with short-term contracts become full-time employees after a short-term contract is renewed twice. The LCL gives the union more active role, and it has demanded greater representation in private Chinese and foreign-invested companies. The new law also greatly limits the use of term contracts and probationary periods, previously popular ways to skirt China's existing labour law regime. Probationary periods are permitted, but the length is limited based on the term of the employment contract, with an absolute maximum set at six months. Furthermore, an employee can only be subject to a single probationary period by a single employer. Wages during the probationary period must also be no less than 80% of the contract wage. The LCL also clarifies requirements for employee non-compete agreements and a failure to abide by those renders the non-compete ineffective. Only senior management and other employees with access to critical trade secrets can be required to enter into non-competition agreements. Employers who fail to abide by the LCL face administrative fines, awards of double wages and liability for actual damages. More importantly, virtually every violation of the law gives the employee the right to sue the employer for penalties and damages in the local employment arbitration bureau or in the local people's courts. As part of this power shift [from employer to employee], the new law allows employees to sue and seek damages from their employers. This new law gives the individual worker and the worker’s union the right to go to court to independently enforce their rights. Chinese workers are increasingly aware of their rights, and they’re likely to take full advantage of this law to vigorously enforce them. An employer can terminate an employee without cause but must pay the employee double severance. Severance equals one month’s pay per year of service. With the implementation of the LCL the Chinese labour law makes a progress toward the general rules recognized by the global standard, but it remains mostly in the field of the individual labour contract. In this regard, the provisions of the LCL relating to the collective contract is a suggestion for the future development of the Chinese labour law. With the Employment Promotion Law and the Labour Dispute Settlement Law, which became effective in 2008 too, the LCL has got the position of the triangle of the modern Chinese labour law. After the implementation of the Social Insurance Law, which is now in debate, we would l

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