Earticle

초록

영어

The social problems that arise as a result of aging of the population are mostly in the areas of labor and social security. As such, the core challenge among the challenges associated the preparation for aged society lies with the ensuring of retirement income security by making the aged workers stay in the work force and the reduction of social costs that will incur in the future. In the case of Korea, however, although in preparation for aged society various laws and systems were prepared and have been in place - in terms of labor and social security statutes, - these are not deemed to be corresponding to reality nor systematically unified. As such, this study conducted an overview of the state of the legislations pertinent to the employment of aged workers, and selectively examined interpretation problems among the existing statutes and practical implementation issues. First, in this study, legislations for the preparation for aged society were classified into three different systems: (i) the field of maintaining or extending the current employment status of aged workers; (ii) the field of promoting the employment of aged workers; and (iii) the field of ensuring retirement income and health coverage and solving the daily life problems that aging brings. For the “field of maintaining or extending the current employment status of aged workers,” issues associated with the introduction of mandatory retirement system were reviewed with respect to the salary peak system. Since employment is terminated solely by the fact that an employee has reached a certain age in a mandatory retirement system, conventionally it can be problematic in terms of its legality and legal nature. Because the Korean labor laws do not regulate mandatory retirement system, there have been assertions in the past claiming that the mandatory retirement system itself is illegal. Currently, based on reasons that seniority-based pay structure’s bringing undue burden on business owners, the legality of mandatory retirement system is mostly accepted. In addition, the problem that the introduction of mandatory retirement system constituting an “age-based discrimination” may arise. However, it needs to be arranged so that the prohibition of employment discrimination based on age becomes evidence that gives justification at the time of the selection of dismissal candidates for normal dismissals or dismissals for managerial reasons that are done before mandatory retirement, and it becomes responsible for managing the function of maintaining employment for aged workers. Hence, mandatory retirement, by itself, cannot be considered applicable for age discrimination. Except, in the case where the time of retirement does not meet socially the normally required retirement age, i.e., an act of forcing retirement through age-based mandatory retirement regardless of remaining ability and intent for employment may be construed as discrimination based on age. Meanwhile, there are assertions of the mandatory retirement system being an unnecessary system. This issue needs to be considered in relation to the “legal principle of limited dismissal.” In fact, even if mandatory retirement system is introduced, workers are being dismissed before their age-based mandatory retirement via various means such as “dismissal for managerial reasons,” etc. Regarding this, there are even positions that argue in favor of reconsidering the effectiveness of mandatory retirement system, by mitigating the “statutory requisites of dismissal.” However, the current Supreme Court of Korea is already interpreting with the requirement of dismissal based on management reasons sufficiently mitigated; in fact, in order to guarantee the effectiveness of mandatory retirement system, the “restricting doctrine of dismissal” would need to be interpreted much more strictly. “Salary peak system,” which is a means for acquiring the effectiveness of mandatory retirement system, was examined. “Salary peak system,” with respect to its guarantee of long-term employment, is considered to be an essential system as the premises for the introduction of mandatory retirement system at the current stage. However, as a condition to ensure retirement age, when pre-set limit for the total number of years of employment is reached before retirement age, then from that point on the worker’s salary is adjusted down, i.e., “retirement age ensuring salary peak system” is considered a disadvantageous change in working conditions, therefore, a care must be exercised in its introduction and the consents of workers must be attained. Additionally, for there is a risk of bringing on decrease in retirement pay and public pension benefit levels when going by salary peak system, methods of ensuring each salary level in its introduction need to be considered. The field of promoting the employment of aged workers was separated into “ban on age discrimination in employment” and “various systems for promotion of employment for the aged,” and examined. Related to the banning of age discrimination in employment, the 2008 “act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion” was enacted and has been in place. This law, however, since the subject of discrimination is limited to employers, it needs to be expanded to include parties other than employers. At a minimum, the parties that fall within the scope of the users of Labor Standards Act would need to be included. In addition, in order to acquire the effectiveness of remedies, this would need to be regulated by not only the National Human Rights Commission, but also by the usual businesses of the Labor Relations Committee. Next, reviewing the “various systems for promoting employment of aged workers," although up to now various systems have been carried out, they have been evaluated as unsuccessful in the perspectives of legal system structure, practical effects, etc. The system to prepare for aged society would need to be pursued comprehensively with consideration given to various perspectives and interrelationships. However, in the case of Korea, consistent systems have not been achieved in the process of preparation and implementation of each law and system, and there is a problem of the lack of interconnectivity. A typical example: the concept and scope of an “aged person,” as regulated by each of the statutes, is unclear. As such, the competent authorities that manage employment promotion task for aged persons would need to be unified, and a variety of laws, such as avoidance of performance-based administration, would need to be put in place. In addition, although the "Framework Act on Low Birthrate in An Aging Society” was enacted in 2005 and has been in place since, it is unclear whether this law can assume the needed authority of the framework law concerning employment legislation for aged persons, and it is deemed that this has not been accomplishing the expected role at the time of legislation. There is an acute need to legislate framework acts that oversee each of the laws and systems for the preparation for aged society.

목차

고령자 고용법제의 현황과 과제
  Ⅰ. 논의의 목적
  Ⅱ. 현행 고령사회 관련 법제의 현황 및 문제점
  Ⅲ. 고령자의 고용 유지ㆍ연장을 위한 분야
  Ⅳ. 고령자의 고용촉진을 위한 분야
  Ⅴ. 결론에 갈음하여
  참고문헌
  〈Abstract〉

키워드

고령자 고령사회 정년제 임금피크제 고령자 고용촉진 경영상이유에 의한 해고 해고제한의 법리 취업규칙 고용상 연령차별 국민연금법 Aged Worker Aged Society Mandatory Retirement System Salary Peak System Promotion of Employment for the Aged Dismissal for Managerial Reasons Collective Bargaining Agreement rules of employment Age Discrimination in Employment National Pension Act

저자

• 김경태 [ Kim, Kyong-Tae | 한림대학교 법행정학부 조교수, 법학박사. ]

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