일본의 가산임금제도

송강직(Song, Kang-Jik) 한국비교노동법학회 2015 노동법논총 Vol.33 No.-

I intend to introduce an additional payment system of the Japan. Labor Standards Act provides that an employer should pay an additional payment of more than twenty five percent of regular wage for extended work and night work and an additional payment of more than thirty five percent of regular wage for paid holiday work per week(only one day per week. hereinafter referred to paid holiday work) in Section 37(1). Simultaneously where an employer failed to pay the additional payment to an employee concerned, the Court should order the additional payment and could order liquidated damages less than or equal to the additional payment(LSA Section 114) with its discretion. Special features of the additional payment system are as follows: First, according to interpretation of the Labor Administration, a holiday work means only paid holiday work which is generally a Sunday work. So even where an employee does a paid holiday work, an employer does not need to pay an additional payment for extended work but only needs to pay an additional payment of more than thirty five percent of regular wage for the work. Second, where an employee does a night work(generally from 10 p.m. to 5 a.m.), an employer should pay an additional payment for night work to an employee concerned. Furthermore, where the extended work gets to the night work, an employer should pay an additional payment both for extended work and for night work. Third, where an employee does an extended work in excess of eight hours in a day or forty hours in a week on holidays that are not paid holidays, an employer should pay the additional payment for extended work as well.

연장근로에 따른 아동돌봄 형태와 일 가족 갈등: 초등학생 이하 자녀를 둔 취업모를 중심으로

성혜영 ( Hea Young Sung ) 대한가정학회 2010 Human Ecology Research(HER) Vol.48 No.9

The purpose of this study was to investigate whether employed mothers` extended working hours have effects on childcare style and work-family conflicts. The data came from the 2007 Korean Longitudinal Survey of Women and Family (KLoWF) of the Korean Women`s Development Institute. 475 females with preschoolers or elementary-school children were used in this study. The major findings can be summarized as follows: (1) Weekly average working hours varied by education, salary, and the presence of preschoolers. (2) The time of childcare was significantly shorter in mothers who work more than 50 hours/week (3) Mothers who worked more than 50 hours/week felt significantly high work-family conflict. These analyses pointed to the importance of obeying the law related to working hours as the most important thing to sustain work-family balance. Institutional foundations should be enabled to keep legal working hours.

단시간 근로자의 초과근로에 관한 연구

오세웅(Oh, Se-woong) 한국비교노동법학회 2015 노동법논총 Vol.33 No.-

The part-time worker is worker have shorter working ours than ordinary worker for 1 week. There are regulations to protect the working conditions of part-time workers on the Labor Standards Act and the Act on fixed-term and part-time workers protection. Especially, Protection from the overtime work is very important because shorter working hours is an essential element for part-time workers. The Act requires the consent of the employee if the employer expects to overtime work for part-time workers. And the employer have to pay the sum for overtime wages. This new regulation is established for the decrease of part-time workers overtime. First of all, to be protected as part-time workers the ordinary workers are must be present in the workplace. And Working hours are a little shorter than ordinary workers. That does not matter how the working hours is short. And consent for overtime should be interpreted very strictly. The employer have to explain about the overtime work to part-time workers. Part-time worker should be able to freely choose the overtime work. Overtime wages paid for overtime of part-time workers is 150% of the normal wage. I think it is sufficient to restrict overtime work for part-time workers. Because financial burden is due to make the limiting overtime. Overtime work is divided extended work, and night work, holiday work on the Labor Standards Act. Therefore, if the reason is duplication wages shall be paid by adding redundancy.

선택적 근로시간제의 적법한 도입과 활용에 관한 연구

정영훈 한국사회법학회 2020 社會法硏究 Vol.0 No.40

1주간에 허용되는 근로시간의 총량이 원칙적으로 52시간으로 한정되면서 이에 대응하기 위한 방안으로 각종 유연근로시간제가 더욱 주목받고 있다. 특히 소프트웨어개발업이나 IT 서비스업에서는 52시간 근로시간 규제에 대응하는 차원에서 재량간주근로시간이 탄력적 근로시간제보다 선택적 근로시간제를 적극적으로 활용하려고 하고 있다. 그런데 선택적 근로시간제는 업무의 시작 및 종료의 시각을 근로자가 결정할 수 있도록 함으로써 근로자의 근로시간 주권을 보장한 제도라는 점에서 이러한 최근의 경향은 다소 우려스럽다. 사용자의 경영 이익을 중점에 두고 52시간 근로시간의 어려움을 극복하기 위한 목적에서 활용되다보면 근로자의 시간 주권 확보라는 핵심적 취지가 몰각될 수밖에 없을 것이기 때문이다. 이러한 상황에서는 가산임금이 제대로 지급되지도 않으면서 장시간 근로가 조장될 위험성이 있다. 따라서 선택적 근로시간제를 제도의 취지에 맞게 성공적으로 도입하고 활용할 수 있기 위해서는 무엇보다도 사용자가 선택적 근로시간제도의 취지를 잘 이해하고 근로자에게 보장되어 있는 업무의 시작 및 종료의 시각 결정권을 보장하여야 한다. 이를 위해서는 사용자는 선택적 근로시간제에 관한 근로기준법의 기준을 잘 이해하고 이를 철저히 준수하여야 한다. 하지만 선택적 근로시간제는 종래 그다지 활용되지 않고 있던 제도인 만큼 이 제도의 법적 요건 등을 명백히 밝히고 있는 행정해석이나 판례 등이 거의 존재하지 않는다는 문제점이 있다. 이러한 문제점은 선택적 근로시간제가 적법하게 도입되고 활용되는 데 중요한 장애요인이다. 본 연구는 이러한 문제의식 하에 종래 충분히 검토되지 않고 있던 몇 가지 쟁점을 검토하여 해결 방안을 제시하고 한다. 본 연구에서 다룰 쟁점은 선택적 근로시간제의 개별 근로자에 대한 적용과 배제, 업무의 시작・종료 시각 결정권과 업무명령의 관계, 연장근로의 산정 방법이다. A various form of flexible working hours system has been getting attention as a way to respond to the 52 hours limited in a week as total amount of working hours. In particular, the industries such as software development industry and IP service industry attempt to actively utilize selective working hours system rather than discretionary working hours or flexible working hours in response to working hours regulation not exceeding 52 hours. However, such trend is a bit concerning as selective working hours system is intended to guarantee working hours sovereignty of employee by enabling employee to determine the starting and ending time of work. If this system is utilized for the purpose of overcoming challenges of working hours not exceeding 52 hours with a focus on managerial interests of employers, then essential purpose of this system, which is securing time sovereignty of employee, will be disregarded. Under such circumstances, there is a risk of encouraging long working hours while additional wage is not properly paid. Therefore, to successfully introduce and utilized the selective working hours system in accordance with its purpose, employer should be well aware of its purpose and guarantee the rights to determine starting and ending time of work by employee. To that end, employer should understand detailed standards prescribed in the Labor Standard Act and strictly comply with them. However, difficulties lie with the fact that the selective working hours system has been rarely employed and only few administrative interpretation and case laws that clarify legal requirements of this system exist. This is major obstacle in legitimately introducing and utilizing the selective working hours system. Being aware of such problems, this study aims to suggest solutions by reviewing several issues that have not been fully reviewed. The issues that this study will deal with are application and exclusion of the selective working hours system to individual employee, relations between rights to determine starting and ending time of work and work order, methods for calculation extended work.

확대된 저작권 집중관리 제도의 도입에 관한 연구

이해완 성균관대학교 법학연구원 2009 성균관법학 Vol.21 No.3

In recent years, the extended collective licensing(ECL) system for copyright has been drawing extensive attention from scholars, officials and legislators of Korea from the viewpoint that its introduction can promote the effective use of copyrightable works. After examining the necessity of its introduction, the compatibility with the international treaties including Berne convention and WPPT, and the various concerns that people against this system raise, this article explores the specific areas where ECL system can be introduced. It is based on a positive perspective toward ECL system. The introduction of ECL system is necessary for following four reasons. Firstly, it will make significant contribution to solving the problem that people can not use enough works to meet the needs that has increased exponentially through digital revolution, due to too high transaction cost related to the exclusivity of copyright. Secondly, it will help users use almost all the works of certain genre under the contract with a representative collecting society without concern for being illegal. Thirdly, it can benefit copyright holders in substance while it does not harm the economic and moral rights of them. Lastly, it can contribute to revitalizing the copyright collective system. And, the conclusion of this article is that ECL system does not conflict with the copyright treaties including Berne Convention and WPPT because it can be regarded as a kind of copyright management system that respect the exclusivity of copyright holders by giving them veto rights and benefit them by decreasing the transaction cost. Also in my view, the conclusion above has been being approved generally in international society after the adoption of EU copyright directive of the year 2001. Finally this article suggests that the applicable areas of ECL should include i) photocopying literary works(including illustration) with public copier for private use, ii) the mechanical reproduction and public performance or communication of musical works, iii) digitalization and public transmission of academic theses for the purpose of education and research iv) digital reproduction or public communication of performance and phonogram of musical works when the system is introduced in a new legislation.

포괄임금제의 내용과 한계

하갑래(Ha Gap-Rae) 한국노동법학회 2009 노동법학 Vol.0 No.29

In Korea wages have been calculated as prescribed by the Labor Standards Act since 1953, according to which workers shall be paid basic wages set in proportion to the number of working hours and additional allowances for overtime, night and holiday work. However, as industrialization resulted in diversified types of employment, cases where the wage calculation method (wage payment method) is hard to apply began to occur. To address this problem, a practice has developed in which companies pay fixed wages, including additional pay for overtime, night and holiday work, even without setting basic wages, or pay basic wages along with a fixed amount of additional pay for extended work. Such a practice, called “inclusive wage system”, has been considered legitimate in more and more court rulings. Yet these rulings have fallen short of presenting a unified view on the concept, nature and effect of the inclusive wage system. Moreover, the scope of allowances included in inclusive wages is too broad. The inclusive wage system is not defined by law so should be relied on as a complementary method only when it is impossible to calculate wages in accordance with the Labor Standards Act. The revision of the Labor Standards Act in 1997 brought great flexibility to the working hour system. Therefore, any rigidity that might arise from the Labor Standards Act should be addressed through the flexible working hour system. The effect of the inclusive wage system should be recognized only when it is hard to apply the flexible working hour system in paying wages. In addition, the concept, nature and effect of the inclusive wage system should be prescribed by the Labor Standards Act so as to prevent its excessive use.

A User Empowerment Approach to Information Systems Infusion

Hee-Woong Kim,Gupta, Sumeet IEEE 2014 IEEE TRANSACTIONS ON ENGINEERING MANAGEMENT - Vol.61 No.4

<P>Information systems (IS) investments fail largely because a newly implemented system is not fully infused into its users' everyday life at work. IS infusion beyond an organization's mandated usage requires that users are actively motivated to use it and that they hold authority over usage of the system. Psychological empowerment represents one's motivational orientation, as well as one's authority to tap into a system's maximum potential. This empowerment is likely an important mechanism underlying successful IS infusion. The main objectives of this study are to: 1) understand the antecedents of empowerment; and 2) examine the effect of empowerment on IS infusion. We developed a theoretical model that was empirically tested through a field study, which focused upon individuals' use of a customer relationship management system. The results strongly support our theoretical model and reveal that the design of a work environment (i.e., IS, job, and social structure) affects the development of user empowerment. User empowerment in-turn plays a prominent role in regulating various aspects of IS infusion (i.e., extended use, integrative use, and emergent use). Overall, this paper contributes to postadoption research by introducing the concept of user empowerment and demonstrating its critical role in regulating IS infusion. It also helps managers promote user empowerment and eventually achieve IS infusion in organizations.</P>

孤儿作品的区块链保护进路与其法制因应

董新义,梅贻哲 한중법학회 2023 中國法硏究 Vol.51 No.-

Orphan works bring about a realistic dilemma to the effective dissemination of knowledge. Despite of our great efforts, the problem of orphan works has not been effectively solved. Using block chain and artificial intelligence to automate diligent search could further facilitate the use and dissemination of orphan works. The architecture includes automated systems capable of performing reasonably diligent search and a block chain registry of all searches for a particular work. Complex technical frameworks can mitigate the shortcomings of existing legal mechanisms. Therefore, a better solution is to consider the appropriate legal framework based on what the technical architecture can achieve, which means that technology should be at the center of legal reform. The block chain technology can improve and even integrate the existing legal framework. 孤儿作品给知识的有效传播带来了现实困境. 传统保护路径虽然付出了巨大的努力,但是仍然无法有效解决这一困境,使用区块链和人工智能技术来自动执行勤勉搜索有望进一步促进孤儿作品的利用和传播. 该技术架构包括能够执行合理勤勉查找的自动化系统以及一个针对特定作品所进行的全域搜索的区块链登记平台. 复杂的技术架构可以缓解现有法律机制的缺点. 因此,更好的解决方案是在技术架构可以实现的基础上考虑合适的法律架构,这意味着技术应参与到法律改革的中心,区块链技术能够对现有法律架构进行完善、甚至融入其中.

고아저작물의 블록체인 보호 진로와 그 법제 대응

董新义,梅贻哲 한중법학회 2023 中國法硏究 Vol.51 No.-

Orphan works bring about a realistic dilemma to the effective dissemination of knowledge. Despite of our great efforts, the problem of orphan works has not been effectively solved. Using block chain and artificial intelligence to automate diligent search could further facilitate the use and dissemination of orphan works. The architecture includes automated systems capable of performing reasonably diligent search and a block chain registry of all searches for a particular work. Complex technical frameworks can mitigate the shortcomings of existing legal mechanisms. Therefore, a better solution is to consider the appropriate legal framework based on what the technical architecture can achieve, which means that technology should be at the center of legal reform. The block chain technology can improve and even integrate the existing legal framework. 고아저작물은 지식의 효과적인 전파에 현실적인 곤경을 가져왔다. 전통적인 보호 경로는 엄청난 노력을 기울였지만 여전히 이 딜레마를 효과적으로 해결할 수 없었다. 블록체인과 인공지능 기술을 이용하여 성실한 조사를 자동으로 수행하면 고아저작물의 이용과 전파를 더욱 촉진할 수 있을 것이다. 이 기술 아키텍처에는 합리적이고 성실하게 조사할 수 있는 자동화 시스템과 특정 저작물에 대한 전역 조사를 수행할 수 있는 블록체인 등록 플랫폼이 포함된다. 복잡한 기술구조는 기존의 법적 메커니즘의 단점을 완화할 수 있다. 따라서 더 나은 해결책은 기술 아키텍처를 실현할 수 있는 전제조건 하에 적절한 법률 아키텍처를 고려하는 것이다. 이는 기술이 법률 개혁의 중심에 참여해야 한다는 것을 의미하며, 블록체인 기술은 기존 법률 아키텍처를 보완하고 심지어 통합할 수 있다.

試用期間의 勤勞契約 法理

윤광희 한국노동법학회 2003 노동법학 Vol.0 No.16

It is probational periods system that employers make laborers be on the job approximately 2-3months gazing on their aptitudes and abilities to work. It has relation to the life-time employment system. And the employers can exercise their rights to rescind consideration certain evaluations before making formal employments. Because the contract of probational periods system reserves rights to rescind, the probational periods are allowed to exercise within 3months. The laborers in probational periods can be under the protection of the Labor Standards Law before expiration. And they can get qualification of formal employees. However the claim rescission relays on employers' judgements, they can reject to enter into formal employments in their own. In this case, Laborers in probational periods are divested qualifications being under the protection of law. The exercising rescission is allowed more extensively, the positions of the laborers are lack of stability. Therefore the rescission should be admitted strictly consideration resonable, rational bases such as attitude, ability and eligibility in working. Also the evaluating eligibility should be impartial and objective. Whether the rescission of formal employment is not based on rational reason or the probational periods are excessively protracted, it will be invalid because of the abuse of rights. The extend or the renewal of the probational periods is prohibited for protection of the employees. And the contract of the probational periods which are indefinite should be annulled. If the rescind formal employment is sentenced for invalid or so, it should be taken for making formal employment at the expiration date of the probational periods.