연장근로와 휴일근로의 관계

김희성(Kim Hee-Sung) 한국비교노동법학회 2014 노동법논총 Vol.30 No.-

A holiday defines for the day when the labor obligation is exempted, and the employee should be allowed for the average of one or more paid holiday per week. (Labor Standard Act Article 55). Also, each work plant can place a separate holiday plan. For example in the case where the 5-day work per week is set, holidays (such as Saturday) in addition to statutory holidays is generally recognized. In this case, the meaning of holiday work stipulated in the Article 56 of the Labor Standards Act should be narrowly interpreted to the workings during the paid holidays guaranteed by the law. In other word, this means to work during the statutory holiday (weekly holiday). There are thoughts that the pre-agreed two days holidays are feasible, from the opinion of providing two days holidays can occur based on the contract, even when the provision of the law states to provide only at least once a week of paid holiday. However the opinion that states that the holiday assured by the statutory law is once a week only and thus all other holidays should be seen as the non-statutory holidays is still persuasive. What the law assures is always the minimum and thus all other advancement should be by each party’s accord. Therefore, the legal fact that the Labor Standard Act provides the statutory obligation to employers to pay 50% premium wage should applied, as a principle, to only the statutory holidays. Whether to fix a premium wage to all other holidays can be agreed as a separate agreement in the employer-employee relation. Since these holidays are specifically guaranteed by the law, unlike to the extended work, the work provided by the employees should be performed only in the exceptional cases based on the consent of the workers when there are specific, inevitable and reasonable needs. Therefore the legal requirement for a practical regulation of the holiday works which separates it from the extended works should be clearly fixed. Nevertheless, even when the holiday work is provided, the daily work hours is limited to 8 hours from the Labor Standards Act, paragraph 2 of Article 50, therefore the overtime rule in the Article 53 shall apply if exceed the general work hours. In addition to the 8 hours of extended work beside the 52 hours of weekly work, 16 hours of extended work become possible in the companies where the two days holidays per week is set, if the weekly holiday terms were fixed by each party’s free accord. In this case the total weekly work hours can reach up to 68 hours.

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.

제주특별자치도 4・3 지방공휴일 조례에 관한 연구 - 조례의 입법과정과 정당성, 향후 구체적 시행방안을 중심으로 -

최춘규 한국입법학회 2019 입법학연구 Vol.16 No.2

제주 4・3 사건은 70년전 제주도에서 ‘수많은 주민들이 희생당한 사건’으로 제주지 역 주민에게는 아직 해결되지 않은 가슴 아픈 경험으로, 매우 특별한 의미를 갖는 지 방의 역사이고, 대한민국의 역사다. 그동안 4・3 사건의 진상규명과 희생자 명예회복을 위해 희생자조사, 4・3특별법 제정, 대통령 사과 등 다양한 노력들이 진행되고 있다. 특히, 4・3의 역사적 의미를 법과 제도적인 측면에서 안정시키는 의미로 2014년 ‘4・3희생자 추념일’이 지정되었고, 더 나아가 4・3의 기억을 우리의 삶과 문화 속에 정착시키기 위한 특별한 방식으로 4・3 지방공휴일이 추진되어 2018년 3월 22일 「제주특별자치도 4・3희생자추념일의 지방공휴일 지정에 관한 조례」가 제정 공포되었다. 그리고 2018년 7월 10일 「지방공휴일에 관한 규정(대통령령)」이 제정되면 서 우리나라 역사상 최초의 지방공휴일이 본격 시행되었다. 그런데 조례 제정당시부터 4・3 지방공휴일 조례에 대한 오해와 함께 여러 문제 가 제기되었다. 법령의 근거없이 지방공휴일 조례를 제정할 수 있는지, 그리고 조 례로 지방공휴일 제도를 시행한다고 하더라도 기존의 공휴일과 동일한 법적 효과 를 발생시킬 수 있는지에 대한 논란들이 그것이다. 이에 본 논문은 우리나라 최초로 지방공휴일 제도를 탄생시킨 제주특별자치도 4・3 지방공휴일 조례의 입법과정을 살펴보고, 우리나라 현행 공휴일의 시초격인 일본의 공 휴일법 체계의 비교분석을 통해 공휴일의 개념과 법적 성격을 명확하게 규명함으로써 지방공휴일 조례의 법적 정당성을 검토하였다. 또한 향후 4・3 지방공휴일의 실질적인 시행과 확산을 위한 구체적인 시행방안으로서 입법과제 등 대안을 제시하였다. 이를 통해 현행 공휴일제도의 문제점을 개선하기 위한 이론적 토대를 제공하고, 4・3 지방공휴일의 실질적인 시행을 통해 4.3 지방공휴일이 우리 현대사의 가장 비 극적인 제주 4・3의 역사를 매개로 하여 제주특별자치도의 모든 주민이, 또 대한민 국의 많은 국민들이 1년 365일중에 4월 3일 하루를 ‘거룩하고 신성한 시간’으로 간직할 수 있도록 하고자 한다. Jeju 4・3 Uprising was an incident when ‘numerous residents fell victims’ in Jeju Island about 70 years ago. It's an unsolved, heartbreaking experience to the residents of Jeju, the history of a region with very special meanings, and the history of the Republic of Korea. For the investigation into Jeju 4・3 Uprising and recovery of the victims' honor, a variety of efforts have been made so far including the investigation into victims, enactment of special laws, and an apology by the president. In particular, in the sense of settling the historical meanings of Jeju 4・3 Uprising in terms of laws and systems, ‘Memorial Day of Jeju 4・3 Victims’ was designated in 2014, and furthermore, as a special way to make the memories of 4・3 Uprising take root into our life and culture, 4・3 lical holiday was pushed ahead, and 「the Ordinance of the Designation of the Memorial Day of 4.3 Victims in Jeju Special Self-governing Province as a Local Holiday 」 was enacted and proclaimed on Mar 22, 2018. And as 「the Regulation of Local Holidays(a Presidential decree)」 was set up on Jul 10, 2018, the first local holiday in the history of Korea became implemented in earnest. However, since the legislation of the ordinance, the problems of the ordinance of 4・3 local holiday have been constantly raised. It is the controversy over whether it can be enacted without the foundation of the law, and whether it can have the same legal effect as the existing holidays even if the local holiday system is implemented by the ordinance. Accordingly, this thesis aims at examining the legislation process of 4.3 local holiday ordinance of Jeju Special Self-governing Province that has created the first local holiday system in Korea, investigating the definitions and legal features of the existing holidays and those of the local holiday ordinance and clarifying the relation between the two, and therefore studying the legal legitimacy of the local holiday ordinance. Moreover, as a specific action plan for actual implementation and dissemination of 4・3 local holiday in the future, alternatives, such as legislation tasks, were to be suggested. Through which, 4.3 local holiday is expected to help all the residents of Jeju Special Self-governing Province and many citizens of Korea cherish one day on Apr 3rd among the 365 days of a year as 'sacred and holy time' with the history of Jeju 4・3 Uprising, the most tragic incident in the modern history of Korea, as a medium.

시간외근로의 쟁점과 과제

이재욱 노동법이론실무학회 2014 노동법포럼 Vol.- No.12

The cause of long time working can be found in various aspects. In terms of legal aspects, the shortcomings of the law itself plays important role as well as interpretation and application of legal regulations. This study is to check contents and to diagnose the problem as one of the causes of the current labor laws. Also it tries to suggest improvement plan at the law analysis or formation. Reducing real working hours by solving the practice of long time working guarantees a living worthy of human dignity and the right of pursuing happiness by giving free time for having worker’s safety and health and enjoying culture. Also job creation and sharing by reducing real working hours contributes to the growth of the national economy through the harmony between labor and management. In short, the purpose of this study would materialize a basic idea of Labor Standards Act and the Constitution by improving overtime working system. The Labor Standards Act introduces that overtime work includes extended work, and night work, holiday work. To avoid constantly overtime work, the Act sets general requirement as agreement between labor and management. And also it forces the additional payment by considering having an influence overtime working on worker. It also has criminal penalties for employers who exceed the limits allowed by law or don’t give additional payment. Meanwhile, it has a various consideration in order to minimize the production activities infringement of the employer from hard limits of overtime working. Through the written agreement with employee representatives, it may design flexible work hours or introduce special schemes and exclude the application of legislation of overtime working for small business and particular business area. There are the following things that are the Improvement of Legislation of overtime work to eliminate the practice of long time working and reduce real work hours. First, set the maximum legal working hours for one day and one week and exchange legal working hours for the maximum working hours. Second, the type of shift work including constantly overtime work should be prohibited by law. Third, Blanket Wage System is permitted only in exceptional cases which are specified employment contract and the scope should be limited to a certain type of employees. Fourth, the rule that have to add uniformly 50% of normal wages for overtime work should be adjusted with the improvement of wage system. Fifth, upper limit for overtime working should be set in flexible working hours system or special system, not applicable to workplace.