기간제 근로계약에서 근로관계 존속기간에 대한 재검토 ― 입법론적 논의를 중심으로 ― = Reconsidering the duration of the employment relationship in fixed-term contracts — Focusing on the legislative discussion —

다국어 초록 (Multilingual Abstract)

The inherent problems of fixed-term labor contracts are employment insecurity and discrimination in working conditions. In particular, the employment insecurity of fixed-term workers deepens the personal subordination of workers to employers.
It seriously undermines the basic order of establishing equal labor relations through the realization of the principle of equal determination of working conditions inherent in the Constitution and labor laws.
There have been many discussions to ensure the labor rights of fixed-term workers and resolve employment insecurity. As a result, the Fixed-term Employment Act was enacted to prevent the abuse of fixed-term labor contracts and protect fixed-term workers. Before and after the enactment of the Fixed-term Employment Act, case law recognizing the existence of the employment relationship has been formed and developed. However, the current case law recognizes the continuation of the employment relationship by focusing on the content of the contract, the subjective intention, and the actual renewal, which are difficult to determine on an equal footing, and therefore has limitations in preventing the abuse of fixed-term employment contracts to circumvent the termination restrictions.
In this article, we emphasized that in our legal system, which embodies Article 32 of the Constitution, the duration of all employment relationships is not left to the free agreement of the contracting parties, but is subject to normative regulation.
The purpose of the Labor Standards Act, which embodied Article 32 of the Constitution, is to regulate the duration of the employment relationship by limiting dismissal, thereby indirectly restricting the employer's ability to set the duration of the employment contract at will. This article argues that this order of law should be realized even within the two-year limit of the fixed-term employment law. Fixed-term contracts are often abused to circumvent the restrictions on dismissal. Under current fixed-term contracts with exit regulation, the prevention of abuse of fixed-term contracts can be realized through a normative judgment on the continuation of the employment relationship, i.e., the justification for non-renewal.
From this perspective, this article proposes, first, to legislate that workers have the right to apply for renewal, and, second, to specify that employers cannot refuse to renew or dismiss a fixed-term worker without a justifiable reason if the work in charge of the fixed-term worker continues after the expiration of the fixed-term labor contract.