「기간제 및 단시간근로자 보호 등에 관한 법률」 제4조의 규범적 의미와 그 맥락

강희원 한국노동법학회 2018 노동법학 Vol.0 No.65

The labor contract with a fixed term is regarded as a cause of unstable employment on the present labor market and a fixed-term employees are nowadays symbolized as the representative of irregular workers in the worker world. So in oder to protect the workers employed with a term the ACT ON THE PROTECTION, ETC. OF FIXED-TERM & PART-TIME EMPLOYEES(Act No. 8372, in the following, written just as “FIXED-TERM EMPLOYEE ACT”) was enacted and enforced from July 1, 2007. Since the same day, Article 16 of the Labor Standards Act, the only provision concerning the period of work contracts in the korean labor law system, has lost its effect pursuant to Article 3 of the Addenda of “FIXED-TERM EMPLOYEE ACT. There is no provision regulating the term of labor contracts explicitly in the korean labor law. The article 4 of FIXED-TERM EMPLOYEE ACT is presently replacing the lapsed provision of the Labor Standards Act. This lapsed article of the Labor Standards Act said, “The term of a labor contract shall not exceed one year, except in case where there is no fixed term or where there is an otherwise fixed term as necessary for the completion of a certain project.” An the one hand, in the article 4 of FIXED-TERM EMPLOYEE ACT is mentioned as the followings: “(1) Any employer may hire a fixed-term worker for a period not exceeding two years (where his/her fixed-term employment contract is repetitively renewed, the total period of his/her continuous employment shall not exceed two years): Provided, That where a fixed-term worker falls under any of the following subparagraphs, any employer may hire such worker for more than two years: 1. Where the period required to complete a project or particular task is specified; 2. Where a fixed-term worker is needed to fill a vacancy arising from a worker's temporary suspension from duty or dispatch until the worker returns to work; 3. Where the period required for a worker to complete his/her schoolwork or vocational training is specified; 4. Where an employer enters into an employment contract with a senior citizen as defined in subparagraph 1 of Article 2 of the Employment Promotion for the Aged Act; 5. Where the job requires professional knowledge and skills or is offered as part of the Government's welfare or unemployment measures, as prescribed by Presidential Decree; 6. Where any reasonable ground exists equivalent to those mentioned in subparagraphs 1 through 5, as prescribed by Presidential Decree. (2) Where any employer hires a fixed-term worker for more than two years although those grounds under the proviso to paragraph (1) do not exist or cease to exist, such fixed-term worker shall be deemed a worker subject to non-fixed term employment contract“. Shown above, how has the korean labor law system therefrom changed its legal situation regarding the regulation of the term condition in the labor contracts? This paper is addressing the above question with its some subsidiary matters together. According the legal argument of the paper, the art. 4, par.(2) of FIXED-TERM EMPLOYEE ACT saying that such fixed-term worker shall be deemed a worker subject to non-fixed term contract, if any employer would infract the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT, is assumed that the fixed-term labor contracts is the causes of unstable employment, and that the non-fixed term contract could be a means of employment stability. In addition, The rule, that any labor contract shall be a non-fixed-period contract, when it were not under the proviso to the art. 4, par.(1) of FIXED-TERM EMPLOYEE ACT. The rule of the non-fixed-term labor contract is the default rule of labor contract in the Korean Labor Law System.

근로기준법상 ‘직장 내 괴롭힘 금지’ 규정의 선원법에의 수용과 관련한 문제

이정원 한국해법학회 2022 韓國海法學會誌 Vol.44 No.3

Article 76-2 of the Labor Standards Act prohibits workplace harassment by employers, etc., and Article 76-3 of the same law stipulates the obligation of employers, etc. to take actions in case of workplace harassment. However, Article 5 of the Seafarers’ Act does not apply Articles 76-2 and 76-3 of the Labor Standards Act to the seafarers’ labor relations. Considering the specificity of the seafarers’ labor relation, it is necessary to establish regulations on the prohibition of harassment in the workplace in the Seafarers’ Act. However, there are some problems in applying the provisions on the prohibition of workplace harassment under the Labor Standards Act to seafarer labor relations. First, the concept and requirements of Article 76-2 of the Labor Standards Act on the prohibition of workplace harassment are too broad and unclear, which may cause confusion and difficulties in practical application. Second, the Seafarers’ Act grants the captain the right to command and take disciplinary action against crew in order to maintain order on-board the vessel and ensure safety on board, and a seafarer is obliged to obey the captain’s command and exercise of control unless there is a justifiable reason. Furthermore, in order to maintain the existence of the labor contract relationship, there may be cases in which a worker experiences mental suffering related to his/her work. However, considering the characteristics of on-board ship labor circumstances that require the use of limited human and material resources to promote safe navigation, unrestricted introduction of Article 76-2 of the Labor Standards Act may lead to friction or contradiction of the exercise of the captain’s authority under the Seafarers’ Act. Finally, Article 76-3 of the Labor Standards Act requires the employer to take necessary measures, such as changing the workplace and ordering paid leave to the relevant person, in the event of workplace harassment. However, the employer’s duty to take measures stipulated by way of example in the above article is not suitable for direct application to seafarers’ labor relations. Rather, focusing on proactive measures such as strengthening communication between crew members and conducting education may be more effective in eliminating on-board bullying. 근로기준법 제76조의2는 사용자 등의 직장 내 괴롭힘을 금지하고 있고, 동 법 제76조의3은 직장 내 괴롭힘 발생시 사용자 등의 조치의무에 관해 규정하고 있지만, 선원법 제5조는 근로기준법 제76조의2 및 제76조의3을 선원근로관계에 준용하지 않고 있다. 그러나 선원근로관계의 특수성을 고려하면 선원근로관계에도 직장 내 괴롭힘 금지에 관한 규정을 둘 필요가 있다. 다만 근로기준법상 직장 내 괴롭힘 금지에 관한 규정들을 선원근로관계에 적용함에 있어서는 약간의 문제가 있다. 먼저, 직장 내 괴롭힘 금지에 관한 근로기준법 제76조의2의 규정은 그 개념과 요건이 지나치게 광범위하고 불명확하다는 문제가 있고, 이로 인해 실무상 적용에 있어 혼란과 어려움을 야기할 수 있다. 둘째, 선원법은 선내질서유지 및 선내안전확보를 위해 선장에게 해원에 대한 명령권과 징계권 등을 부여하고 있고 해원은 정당한 사유한 없는 한 선장의 명령에 복종하여야 하는데, 근로계약관계의 존속 유지에는 근로자에게 어느 정도 정신적 고통을 수반하는 경우가 발생할 수 있다. 그런데 한정된 인적․물적 자원을 활용하여 안전항해를 도모해야 하는 선내근로관계의 특성을 고려하면 근로기준법 제76조의2를 무제한적으로 도입하는 것은 자칫 선내안전확보 등을 위한 선원법상 선장의 권한행사 등과 마찰 내지 모순을 야기할 우려가 있다. 마지막으로, 근로기준법 제76조의3은 직장 내 괴롭힘 발생시 사용자로 하여금 관련자에 대한 근무장소의 변경, 유급휴가 명령 등 필요한 조치를 취하도록 있지만, 위 조항에서 예시적으로 규정하는 사용자의 조치의무 등은 선원근로관계에 직접적으로 적용하기에 적절하지 않다. 오히려 「선내 괴롭힘 근절 지침서」에서 선내 괴롭힘 근절 방안으로 제시하고 있는 선내 구성원 상호 간의 소통의 강화, 선내 괴롭힘에 대한 교육의 실시 등 사전적 예방적 조치들에 역점을 두는 것이 선내 괴롭힘을 제거하기 위한 보다 진일보한 방안이라고 볼 수 있다.

근로기준법상 근로자개념 : 근로기준법의 적용확대와 선별적용과 관련하여

박종희 한국노동법학회 2003 노동법학 Vol.0 No.16

1. Because our Labor Standard Act includes the provision defining the concept of employee, should be based on the provision, the concept of employee should be based on the provision. It makes a difference with German employment law system, which don't include such a provision. The concept of employee means a party to employment contract which may be considered same as a labor contract in civil code. From the viewpoint of it, the term of 'subordination' can not be used as a criterion for the concept of employee differently from Japan labor law. Consequently, the judiciary's interpretation, which have determined on the definition of 'employee' applying the 'subordination' as primary criterion, may have a problem with methodology. 2. If the concept of employee on Labor Standard Act is considered as a party to employment(labor) contract, substantive factors of the employment contract relations should exactly analyzation, criteria can be suggested as follow. - To offer personally one's own services with continuance - To be subject to others' directions as a result of it - To be incorporated into a work organization, namely, 'at a business and/or workplace' - To receive own's pay in compensation for offering the services in person. Furthermore, It can be considered as secondary factors whether the services belong exclusively to person and a worker can be regarded as the self-employed running a business independently. 3. Labor Standard Act is legislated for the purpose of protecting employees as the social weak based on the Constitution (esp. Art. 32) the legislative body are obligated to make a labor law for that object, but it can make a difference in application of the law at one's own discretion. In this point our labor protection law may be distinct from the equivalent of German, in which have considered the term of labor law, subordinative work and employee as implying the same meaning. Therefore we can't determine the application extent of out Labor Standard Act with all or nothing. If the Act may be interpreted in accordance with this standpoint as above, it can flexibly cover up a various form of employment. 4. In conclusion, the concept of employee Labor Standard Act may be regarded as a party to employment contract and may be interpreted basing on the purpose of the Act. Then, it makes possible to interpret as applying the Act to some form of employment, which employers are more than two in a employment relations and on the contrary employees maintain more than two employment relations with plural contracts.

근로계약법의 이론적 정초

姜熙遠(Kang, Hee-Won) 한국노동법학회 2013 노동법학 Vol.0 No.48

As well as we know, there is no written code called ‘labor contract act’ in the Republic of Korea, but there have been substantial normative meaning of labor contractual rules in Korea that regulate the creation, change, termination of legal rights and duties of employers and employees in individual employment relations. Korean labor market has undergone many transformations as enterprise globalization, diversification of forms of employment, individualization of worker’s consciousness etc., so the properly-designed codification of labor contract lawshould be asked to settle and adjust a bunch of new legal problems and conflicts appropriately in individual employment relations. In this article, some basic questions about Korean Labor Law System are treated with a systematic approach in oder to rebuild an ideal and fundamental infrastructure of korean labor contract law extensively. As the starting point for this legal-dogmatical study, I’m taking paragraph 32 of the Constitution of Korea and some general provisions(article1 to article 6) of the Labor Standard Act which should be regarded as the principles of Korean labor contract law. The Constitution is the supreme law by which all of the korean laws are legitimized. The Labor Standard Act is the Framework Act on individual employment relations which are based on labor contracts agreed between employees and employers, although this Act was originally established as a labor protection law. If any legislation of labor contract law would be enacted in the future, it is the natural corollary that legislation should be subject to the Korean Constitutional Law and the Labor Standard Act inevitably. Following provisions would work as order-ideas which signpost right regulative and legislative directions for the labor contract law; paragraph 32 of the Constitutional Law states the guarantee of laborer’s dignity as a human being in working conditions, and article 1 of Labor Standard Act sets its legislative purpose as securing labor’s Basic Livelihood, article 3 of this Act prohibits lowering working conditions below the legal minimum, and article 6 of this imposes employer to provide equal treatment for all employees of his workplace unit. Especially, the principle of equal decision to working conditions between employee and employer and the doctrine of good faith and sincerity in the Labor Standard Act itself article 4 and article 5 should be recognized as the fundamental principles for the coming labor contract law.

파산절차상 해고에 관한 판결의 부당성 -대상판결: 대법원 2004. 2. 27. 선고 2003두902 판결-

박승두 한국외국어대학교 법학연구소 2014 외법논집 Vol.38 No.2

Dong A Construction Corporation was declared bankrupt by Seoul District Court on 11, May 2001. At thesame time, the bankruptcy administrator gave advance notice of dismissal on 15, May, the same year on theInternet bulletin board informing 32 employees including union leaders will be discharged as of 14, June thesame year. Complaining it was an unfair labor practices as the only union leaders were given dismissal notice, theyasked Seoul National Labor Relations Commission to investigation for unfair labor practices on 17 May thesame year. However, the council dismissed the petition saying it was a dismissal with justifiable reason andthere was no unfair labor practices on 19 July the same year. The complaints applied for a retrial to the Central Labor Relations Committee. Although it ruled that it wasunfair dismissal and unfair labor practices that they were deprived of the right to work even as assistants andoverruled the first trial, it also dismissed the petition for both the reinstatement and the payment they weresupposed to received. Later, the appeal was dismissed at the Seoul Administrative Court, Seoul High Court andthe Supreme Court. However, I can't accept the Supreme Court's Judgement as it failed to understand the legal nature ofdismissal in bankruptcy Proceedings. The general opinion in academic field is that the legal nature of dischargein bankruptcy proceedings subject to following: 1. Dismissal based on the Labor Standard Act, 2. Cancellationof contract due to mutually unfulfilled bilateral contract based on Debtor Rehabilitation Act, 3. The terminationof employment contract based on the Civil Law. The the Supreme Court's Judgement was made based on the rules for bilateral contract in old BankruptcyAct-the current Debtor Rehabilitation Act and the Civil Law, disregarding both mutually unfulfilled bilateralcontract in Debtor Rehabilitation Act and the employment contract in the Civil Law. The objective of labor lawis to specify the procedure of the fundamental labor rights and the extent of its application stated in theConstitution, while the Debtor Rehabilitation Act specifies special provisions that is required for companyrehabilitation. So, it does not serve its purpose to specify the extent of labor right application in the DebtorRehabilitation Act. Even though such provisions were to be enacted in the Debtor Rehabilitation, it would bethe labor law in an “extended” or "substential" meaning which does not meet the minimum standard of thelabor condition stated in the Labor Standard Act. This is the violation of the provision of Article 1 and 2 ofthe Labor Standard Act that states the minimum standard of working condition and the Constitutional HumanLiving Right.

채무자회생법과 노동법의 관계

박승두(Park Seung-Du) 한국노동법학회 2010 노동법학 Vol.0 No.35

The Debtor Rehabilitation and Bankruptcy Act(The Debtor Rehabilitation Act) stipulates the rehabilitation and the bankruptcy proceeding to settle the debt and credit relationships for the debtor when the debtor is under bankruptcy conditions or on the verge of it. The Labor Law stipulates the procedure and the process specifically to materialize the labor rights guaranteed in the constitution. The labor law guarantees the three rights of labor for workers, which guard the rights by their united force. The Labor Standard Act shelters the bare minimum working condition for maintaining human life. This article specifically delves into four viewpoints for the rights of company workers undergoing the rehabilitation and the bankruptcy proceeding according to the Debtor Rehabilitation Act in terms of the relationship between ‘the Debtor rehabilitation Act and the Labor Law.’ First, a trustee in the rehabilitation proceeding or bankruptcy trustee undertakes the management when a company undergoes the rehabilitation or bankruptcy proceeding. In so doing, a concern arises with regard to the continuation or the automatic termination of existing labor relations. Second, when a company respects every step stipulated in the Debtor Rehabilitation Act and precedes the rehabilitation or the bankruptcy proceeding, a concern arises whether the conditions in the Labor Standard Act are equally exercised as are for ordinary companies for the termination of existing labor relations; that is, the dismissal of the workers, or the regulations in the Debtor Rehabilitation Act or exceptional interpretations should occur without fulfilling the conditions in the Labor Standard Act. Third, the Labor Standard Act and the Employee Retirement Benefit Security Act stipulate the prior payment for wage claims by workers. A concern which arises is whether such a wage claim can also be applicable during all procedures stipulated in the Debtor Rehabilitation Act such as rehabilitation or bankruptcy proceeding. Four, when a collective agreement which was made between users and labor union when the company was in a normal status subsists, a concern arises whether the validity of the existing collective agreement is still effective when the company assumes the rehabilitation or bankruptcy proceeding.

근로기준법상 ‘사회적 신분’의 의미와 무기계약직에 대한 차별의 문제

김태현 노동법이론실무학회 2017 노동법포럼 Vol.- No.20

As we can infer from the negative connotations such as ‘pseudo-full-time worker or ‘quasi-full-time worker’ given to workers deemed permanent contract workers(“unlimited contract workers”) due to the application of the Act on the Protection Etc. of Fixed-Term and Part-Time Workers (the “Act”) by the labor unions and social workers alike, unlimited contract workers are discriminated from full-time workers in every aspect including, but not limited to, wages, promotions, welfare, etc. These issues are especially prevalent among temporary workers in the public sector and financial sectors, such as bank tellers. Even if unlimited contract workers do the same work as full-time workers, while fixed-term workers can fall back on the Act for any remedy to discrimination, unlimited contract workers fall outside of the scope of the prohibition against discrimination clause provided by the Act and are at a blind spot where discrimination against working conditions and welfare cannot be rectified. In order to address this problems, some have gone as far as to classify ‘unlimited contract worker’ status or ‘full-time worker’ status as part of the “social status” prescribed in Article 6 of the Labor Standards Act of Korea, providing an apparatus to argue “equal pay for equal work,” nonetheless, such argument was only in the minor opinion as the majority of the academia construed that worker status based on employment contracts did not constitute “social status” in Article 6 of the Labor Standards Act. A recent lower court decision shed new light on this topic by stating that full-time worker, unlimited contract worker and any type of employment constitutes the “social status” part of Article 6 of the Labor Standards Act despite the popular opinion regarding this matter. This particular court decision is exposed to criticism from a legal standpoint at is contradicts the precedent set by the Supreme Court;(i) wrongfully classifying type of employment as “social status” considering the social construct of “social status”, (ii) violates the principle of autonomous agreement, (iii) contradicts with the employer’s freedom to set different rules of employment for different types of employment, and (iv) different types of employment are not subject to the measure of equality. On the other hand, the court decision does goes out of its way to curb the abuse of using temporary workers in today’s reality with a high social cost of employment and is the first to provide a legal principle to protect unlimited contract workers’ status. Despite the lower court’s good intentions, the application of such in today’s reality where “equal pay for equal work” is not upheld is questionable, not to mention that the expansion of “equal pay for equal work” in other types of employment may trigger the wage system to be distorted into working as a performance-based annual salary system, which in turn may lengthen the working time of the employees and bring about a decline in the welfare of the employees. On the contrary, the Supreme Court still holds that different types of employments are not subject to equal treatment, therefore even if the employer sets a different track for these employees, no such discrimination would arise from such an action. In my opinion, the Supreme Court errs in that different types of employment are not subject to the same equal status as each other. But this opinion comes with a caveat that even if the lower court decision is correct in assessing that type of employment constitutes “social status” in Article 6 of the Labor Standards Act, equal status as an employee does not necessarily mean that each employee provide the same standard of work. It is important to take into consideration the skill (license, educational degree, ability to carry out a job through experience and the objective standard of skill), responsibility (characteristic, range and complication inhere... As we can infer from the negative connotations such as ‘pseudo-full-time worker or ‘quasi-full-time worker’ given to workers deemed permanent contract workers(“unlimited contract workers”) due to the application of the Act on the Protection Etc. of Fixed-Term and Part-Time Workers (the “Act”) by the labor unions and social workers alike, unlimited contract workers are discriminated from full-time workers in every aspect including, but not limited to, wages, promotions, welfare, etc. These issues are especially prevalent among temporary workers in the public sector and financial sectors, such as bank tellers. Even if unlimited contract workers do the same work as full-time workers, while fixed-term workers can fall back on the Act for any remedy to discrimination, unlimited contract workers fall outside of the scope of the prohibition against discrimination clause provided by the Act and are at a blind spot where discrimination against working conditions and welfare cannot be rectified. In order to address this problems, some have gone as far as to classify ‘unlimited contract worker’ status or ‘full-time worker’ status as part of the “social status” prescribed in Article 6 of the Labor Standards Act of Korea, providing an apparatus to argue “equal pay for equal work,” nonetheless, such argument was only in the minor opinion as the majority of the academia construed that worker status based on employment contracts did not constitute “social status” in Article 6 of the Labor Standards Act. A recent lower court decision shed new light on this topic by stating that full-time worker, unlimited contract worker and any type of employment constitutes the “social status” part of Article 6 of the Labor Standards Act despite the popular opinion regarding this matter. This particular court decision is exposed to criticism from a legal standpoint at is contradicts the precedent set by the Supreme Court;(i) wrongfully classifying type of employment as “social status” considering the social construct of “social status”, (ii) violates the principle of autonomous agreement, (iii) contradicts with the employer’s freedom to set different rules of employment for different types of employment, and (iv) different types of employment are not subject to the measure of equality. On the other hand, the court decision does goes out of its way to curb the abuse of using temporary workers in today’s reality with a high social cost of employment and is the first to provide a legal principle to protect unlimited contract workers’ status. Despite the lower court’s good intentions, the application of such in today’s reality where “equal pay for equal work” is not upheld is questionable, not to mention that the expansion of “equal pay for equal work” in other types of employment may trigger the wage system to be distorted into working as a performance-based annual salary system, which in turn may lengthen the working time of the employees and bring about a decline in the welfare of the employees. On the contrary, the Supreme Court still holds that different types of employments are not subject to equal treatment, therefore even if the employer sets a different track for these employees, no such discrimination would arise from such an action. In my opinion, the Supreme Court errs in that different types of employment are not subject to the same equal status as each other. But this opinion comes with a caveat that even if the lower court decision is correct in assessing that type of employment constitutes “social status” in Article 6 of the Labor Standards Act, equal status as an employee does not necessarily mean that each employee provide the same standard of work. It is important to take into consideration the skill (license, educational degree, ability to carry out a job through experience and the objective standard of skill), responsibility (characteristic, range and complication inhe...

골프장캐디의 노동법상의 지위 - 大判 2014. 2. 13, 2011다78804 및 이 판결의 원심 서울고법 2011. 8. 26, 2009나112116에 대한 비판적 검토 -

김형배 노동법이론실무학회 2014 노동법포럼 Vol.- No.13

In February 2014, the Supreme Court handed down its decision on whether to consider a golf caddie as a worker by the each definition of the Labor Standards Act and the Labor Union and Labor Relations Adjustment Act. The decision was to consider the golf caddie in this case as a worker by the definition of the Labor Union and Labor Relations Adjustment Act, but not by the definition of the Labor Standards Act. However, this decision is questionable. If the golf caddie was in a independent relationship with the golf course company, it would be right to consider that there was no labor contract. In this case, the golf caddie was not a worker under the definition of the Labor Standards Act. Hence, the golf caddie was not a worker either by the Labor Union and Labor Relations Adjustment Act. This decision agrees to the precedent which clarified the definition of a worker by the Labor Union and Labor Relations Adjustment Act as ‘a person lives on wages earned in pursuit of any type of job’. But in this decision, it is a contradiction that no direct labor contract between the golf caddie and the golf course company is needed to admit that the golf caddie is a worker by the Labor Union and Labor Relations Adjustment Act. What is more, the decision caused a confusion on the qualification of a worker on the Labor Union and Labor Relations Adjustment Act ; who can join a labor union and who can be subject to a collective agreement. Therefore, if the golf caddie in this case was not a worker by the definition of the Labor Standards Act, then the golf caddie was also not a worker by the Labor Union and Labor Relations Adjustment Act. The status of golf caddies in the case should be acknowledged to be workers by the Labor Standards Act. A worker by the definition of the Labor Standards Act can join a labor union and may can ask for a collective bargaining through the union.

선원 근로기준에 관한 선원법 제5조 제1항 개선방안 연구

이재현 한국사회법학회 2022 社會法硏究 Vol.- No.48

The views on the relationship between the Seafarers Act and the Labor Standards Act are mainly divided into a theory that they are in a special law relationship and a theory that regards them two separate legal systems. Prior to the amendment, the Seafarers Act had comprehensively applied the Labor Standards Act mutatis mutandis. However, the current Seafarers Act limitedly applies only some provisions of the Labor Standards Act. Considering this change, it is difficult to evaluate them as being in a special law relationship under the current legal system. The problem is that while labor-related laws such as the Labor Standards Act have been improved through revisions, the labor protection-related regulations of the Seafarers Act have relatively lagged, resulting in vulnerabilities in protecting seafarers. Therefore, it is necessary to focus the discussion on effectively improving the relevant regulations of the Seafarers Act rather than clarifying the relationship between the two laws. Specific improvement measures include applying additional regulations such as dismissal for managerial reasons, charges for compelling compliance, protecting employees' maternity, and prohibition of workplace harassment while maintaining the current regulatory system, and enacting separate a “Seafarers Labor Standards Act” applied to seafarers. First of all, it is necessary to seek ways to additionally apply the provisions of the Labor Standards Act, where applicable, while maintaining the current regulatory system. In the mid to long term, further strengthening the level of protection for crew workers by enacting an “Act on Labor Standards for Seafarers” or a “Seafarers” Labor Standards Act. 「선원법」과 「근로기준법」의 관계에 대해서 특별법 관계에 있다는 학설과 별개의 법체계라는 학설로 구분된다. 개정 전 선원법은 근로기준법을 포괄적으로 준용하였으나, 현행 선원법은 근로기준법의 일부 조항을 제한적으로 적용하고 있다. 이러한 점을 고려하면 현행법 체계상 특별법 관계로 평가하기는 어렵다. 문제는 근로기준법 등 노동관계법령이 충실하게 개정되는 동안, 선원법의 노동보호 관련 규정의 개정은 상대적으로 늦어져 선원근로자 보호에 취약점이 나타나고 있다는 점이다. 따라서 두 가지 법의 관계 규명보다 선원법 관련 규정의 실효적 개선이 중요하며, 여기에 논의를 집중할 필요가 있다. 구체적인 개선방안으로 현재 방식을 유지하면서 경영상 해고, 이행강제금, 모성보호, 직장 내 괴롭힘 금지 등 규정을 추가로 적용하는 방안과 선원근로자에게 적용되는 독립된 별개의 ‘선원 근로기준법’을 제정하는 방안을 생각해 볼 수 있다. 우선, 현 체계를 유지하면서 적용 가능한 근로기준법상 규정을 새롭게 추가 적용하는 방안이 모색되어야 하며, 중・장기적으로는 ‘선원 근로기준에 관한 법률’ 또는 ‘선원 근로기준법’을 제정하여 선원근로자에 대한 보호 수준을 더욱 강화할 필요가 있다.

가사근로자의 법적지위에 관한 연구

하갑래(Ha Kap-Rae) 한국노동법학회 2011 노동법학 Vol.0 No.37

It is one of the important tasks of the employment and labor policies to increase the employment rate of women and support the reconciliation of work and family life. In the process of implementing the task, the supply and demand is expected to increase sharply for the care work such as domestic labor, nursing, and home child care. The care work that can serve as a new frontier for job creation needs to be developed from a poor and vulnerable work to a decent work. To achieve this, legal foundation is required to be established to clarify its concept and secure proper level of protection. The nation's labor standards act makes it absolutely clear that it is not applied to domestic workers. The followings are quoted as the main reasons for it; the domestic labor is not for business or privacy needs to be protected or there are limitations in carrying out labor inspection. The above-mentioned reasons, however, have weak validity as a logical ground for not applying the labor standards act to domestic workers. According to the research conducted by the ILO on 65 countries, only 9 countries including Japan, Egypt, Turkey, and Jordan do not explicitly apply labor standards act to domestic workers. Therefore, legislative approach is needed for applying labor standards act to domestic workers. 3 methods can be suggested as concrete ways to apply labor standards act to domestic workers. First, labor standards act can be applied to domestic workers just like average workers. Second, only some clauses whose applicability is stated in the labor standards act can be applied. Third, some working conditions can be protected by enacting a special law instead of labor standards act. Given that domestic workers have different characteristics compared to average workers, the second and the third methods can be satisfactory alternatives. Considering the overall system of the labor standards act, however, the third method is the better solution.