Earticle

초록

영어

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 agreementin 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.

목차

Ⅰ. 문제의 제기
 Ⅱ. 연장근로와 휴일근로의 관계에 관한 해석론
  1. 문제의 제기
  2. 휴일근로의 주간 연장근로 산입 및 중복할증을 인정하는 견해
  3. 판례의 태도와 문제점
  4. 비판적 검토
 Ⅲ. 요약 및 결론
 참고문헌
 ＜Abstract＞

키워드

저자

• 김희성 [ Kim Hee-Sung | 강원대학교 법학전문대학원 교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  노동법논총 [The Journal of Labor Law]

• 간기

  연3회

• pISSN

  1229-4314

• 수록기간

  1998~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 336 DDC 363