Earticle

초록

영어

Fixed-term contract of employment, which generally refers to the contractual relationship between an employee and an employer that lasts for a specified period, is seen by many employers as a convenient alternative to permanent contracts of employment which can only be terminated under reasonable grounds. Generally, a fixed-term contract ends on an agreed date. Once the time period ends, the contract is automatically terminated and the employer need not give any notice of termination. The period of such a contract may range from a matter of months up to a period of a year or more. However, a fixed-term contract can also involve a specified-purpose and so may not end on a specific date. Rather, it is agreed that the contract will finish when a particular stated task is completed. After this, if the employer wishes to renew the employee’s contract, it must be an open-ended contract unless there are objective grounds justifying the renewal of the contract for a fixed term only. The legitimacy of fixed-term contracts is regulated strictly by the Protection Act of Fixed-Term and Part-Time Employee (the Fixed-Term Act). The Fixed-Term Act determines whether or not the fixing of a deadline is justified on objective grounds. According the Fixed-Term Act fixed-term contracts may not last longer than 2 years unless there are objective reasons such as completing a specific task, or the occurrence of a specific event. Acceptable justifications for fixed-term contracts are listed in the Act. The most common reasons for fixing a term of employment are when:The period of employment is to complete a specific task. The employee is employed to cover an absent permanent employee. The period of employment is to provide a young person with education or work experience. The conclusion of fixed-term contracts with older employees. The employee is professional with specific knowledge or technology. The period of employment is to provide an unemployed person with job in accordance with government measures against unemployment or welfare policy etc. The Fixed-Term Act tries to prevent abuse arising from the use of successive fixed-term contracts of employment, the so-called “chain contracts,” by stating that unless there are objective reasons justifying the renewal of such contracts, fixed-term contracts cannot be renewed. If fixed-term contracts last longer than 2 years without objective reasons, it shall be regarded as an open-ended contract. Before the legislation of the Fixed-Term Act it is generally believed that after a fixed term contract is rolled over or renewed, the employee may develop a right to expect that the employer will continue to renew the contract. The number of times that a fixed term contract of employment has been rolled over may contribute towards an expectation of another similar contract after the natural expiry of the last contract. The supreme Court found that employees had established a reasonable expectation, and consequently that then dismissal was deemed to be unfair in circumstances in which there were repeated renewals of the contract. The question is that if this principle of the right of expectation of renewal of fixed-term contracts is still available for the case of justifications for fixed-term contracts according to the Fixed-Term Contract. The recent decision of the Supreme Court reviewed the question whether a fixed-term contract of researcher with doctor degree can be renewed according the rules of employment in which a fixed-term contract cannot be renewed in case of the lack of job performance. The Court found that the employers’ decision not to renew a fixed term contract is unfair. There had been repeated renewals over a 5 year period. The work was available for the employee. He had satisfied a reasonable expectation of renewal. The principle: work was available for the employee to do, and the employee could do it. It is concerned that the employer would refuse the renewal of a fixed- term contracts in order to avoid the right of expectation of renewal of fixed-term contracts. It should be remembered that the strict protection rules tend to lead adverse effect. It is sort of a double edged sword but mostly proved inhibitive when it came to the employer’s decision to renew the contract.

목차

Ⅰ. 문제의 제기
 Ⅱ. 대법원 2013. 11. 15. 선고, 2013두16388 판결 요지
 Ⅲ. 사건의 쟁점
 Ⅳ. 기간제법상 사용기간 제한의 예외 사유
 Ⅴ. 갱신기대권
 Ⅵ. 결론
 참고문헌
 Abstract

키워드

저자

• 조성혜 [ Cho, Sung-Hae | 동국대학교-서울 법과대학 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