Earticle

초록

영어

It is the tendency of precedents that the misrepresentation of career in the past was recognized as the fair reason of dismissal so that it lapsed the employment relationship in the future. At the end of 2017(Supreme Court [S. Ct.], 2013Da25194, Dec. 22, ‧2017(Original suit), 2013Da25200(Cross-bill)), however, the Supreme Court held for the first time that the misrepresentation of career is fraud so that the employment contract may be cancelled. However, there has been a different opinion between the judgment in the Trial Court or the Appellate Court and the Supreme Court on the appeal with respect to the scope of retroactive effects on the cancellation of employment contracts. The Trial Court recognized the retroactive effect (The first sentence of Article 141 of the Civil Act) without limits, the Appellate Court limited the retroactive effect only for the period providing real services, and the Supreme Court limited the retroactive effect for the period of unfair dismissal not to provide real services so that the effect of cancellation lapsed the relationship of employment contracts only for the future after the declaration of intention of cancellation(After the service of process of cross-bill). The Supreme Court held that denying the effect of providing employees’ services done under the employment contracts in the meantime is not valid so that it is not seen that the legal relationship before the cancellation formed on the basis of employees’ services lost the effect and the effect of employment contracts only for the future after the declaration of intention of cancellation is lapsed. However, it shall be seen that a person who misrepresents a career infringes the fundamental principle of private autonomy (Freedom of contract) through inducing the defective declaration of intention to the other party by fraud action. If the employment contract is entered into by unfair fraud action, the party shall not be protected under the law of the dismissal restriction in order to protect the existence of relationships of the employment contract. Therefore, the cancellation caused by fraud does not have the requirement of fair reasons under Article 23(1) of the Labor Standards Act and the compliance of consistent notification periods. Likewise, the cancellation caused by fraud does not apply to the regulation of written notice(Article 27 of the Labor Standards Act). To be limited on the retroactive effect of cancellation is only restricted on the period provided by real services and has the evidence that it has the difficulty to pay unfair profits back and the prevention of disadvantages to a worker. If these regards are considered, the effect of cancellation in this case shall affect the retroactive effect to the period of unfair dismissal without real services so that the employee shall not require the wage of this period. The case of misrepresentation of career in the past is handled with a dismissal case so that the relationship of employment contracts is lapsed for the future, but the case of same contents is dealt with a cancellation case so that the problem of retroactive effect occurs. In fact, however, the difference on the effect is a job to endure since the cancellation system is an original system that differentiates the legal characteristic and the juridical thinking unlike the dismissal system.

목차

Ⅰ. 대상판결 : 대법원 판결(대법원 2017. 12. 22, 2013다25194(본소)ㆍ2013다25200(반소))의 쟁점
 Ⅱ. 대법원 판결에 대한 검토
 Ⅲ. 비판적 검토 및 결론
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키워드

경력사칭 근로계약의 취소 기망에 의한 의사표시 취소 취소의 소급효 제한 해지와 취소 기망에 의한 사적자치의 침해 부당 해고 기간과 취소의 소급효 Misrepresentation of Career Cancellation of Employment Contracts Cancellation of Declaration of Intention by Fraud Termination and Cancellation Infringement of Private Autonomy by Fraud Term of Unfair Dismissal and Retroactive Effects of Cancellation

저자

• 김형배 [ Kim, Hyung-Bae | 고려대학교 명예교수. ]

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