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La loi de modernisation sociale en date du 17 janvier 2002 a légalement reconnu le concept de harcèlement moral et a introduit le système légal pour combattre le harcèlement moral. Concernant harcèlement moral per se, la loi de modernisation sociale a institué le cadre légal basé sur la insertion dans le code du travail de la définition et des dispositions spéciales pour combattre le harcèlement moral. Cette étude examine des enjeux suivants concernants le harcèlement moral au travail. (1) État des lieux du harcèlement moral au travail ; les causes et les méthodes du harcèlement (2) Nécessité d'une législation spécifique au harcèlement moral au travail (3) Signification d'une législation concernant harcèlement moral au travail (4) Notion de harcèlement moral ; éléments constitutifs du harcèlement moral (5) Harcèlement moral et mécanismes de prévention (6) Mécanismes de règlement des situations de harcèlement moral (7) Harcèlement moral et la responsabilité civile

The reason why harassment cases have all revolved around sex or race is because of the fact that until the Protection from Harassment Act 1997 there was no legislation in force specifically prohibiting harassment as such in the UK. However since 1975/76 there has been specific legislation in force prohibiting sexual and racial discrimination and cases of sexual or racial harassment have been dealt with by the courts on the basis that sexual or racial harassment is in fact sexual or racial discrimination. Therefore in such cases workers had to demonstrate that they had bee not only harassed but the reason they were so wass because of sex or race. The grounds because of which harassment have been prohibited extended to cover disability, sexual orientation, religion or belief and age. Moreover, the Equality Act 2010 provides that harassment at work has to be related to such grounds in order to constitute harassment under the Act. This amendment is expected to lessen the burden of proving the causation between harassment and those grounds. Time limits for bringing cases before an Employment Tribunal are tight and claims must be brought within 3 months of the date of the last incident complained of. Persons who have been harassed at work because of grounds other than those under the Equality Act are not completely helpless from a legal point of view.If someone is harassed at their place of work they could decide to sue their employer for damages using the Protection from Harassment Act 1997 rather than by going to an Employment Tribunal. In some circumstances this route could be simpler particularly if there could be technical arguments as to whether they were an employee or a self employed contractor. Those employment law technicalities would not be relevant in any legal claim under the act. All that would be relevant is the fact that the harassment occurred, the damage it caused and whether the employer was vicariously liable for permitting, or not preventing the Harassment. The Law relating to Vicarious Liability was clarified and extended by the House of Lords in the case of Lister v Hesley Hall Ltd and following this in the case of Majrowski v. Guy's and St. Thomas' NHS Trust the House of Lords held that an employer would be vicariously liable under the Protection from Harassment Act 1997 for damages arising from Harassment of an employee by other employees. The Time Limit for bringing a claim for damages under section 3 of The Protection from Harassment Act 1997. is 6 years which is far longer than the 3 month time time limit for bringing claims for Racial or Sexual Discrimination. Moreover, if workers have been subjected to such a degree of harassment that they have to leave their employment then they can claim compensation from an Employment Tribunal on the grounds that they have been the victim of ‘constructive dismissal’.

This paper is aimed at situation where employees die in the course of work. It analyzes precisely the necessary conditions of applying the article 66-2 to death cases which the Supreme Court has showed us. The conclusion of this paper is this: general tendency of the Supreme Court’s Decisions on applying this article to the cases concerned is so rigid, that employers could escape from the relevant criminal responsibilities without much difficulty. But, the article 66-2 in the Health and Safety at Work Act is very important, because it is the unique article regulating the employer’s criminal liability on the death of employees at work. Specially, under situation that the Supreme Court denies general punishment upon the cooperations based on the Criminal Law, it plays a crucial role to put some meaningful pressure on them. Considering these legal circumstances, major changes on the strick interpretation of the laws are needed and the subjective of changes is the classic principle of criminal liability.

It is a controversial issue to decide to what extent does the management have access to personal information of workers, as the management provides medical check-up and epidemiology research. The labor is opposed to provide workers’ personal information claiming that the information accessed could affect the employment process while the business owners believe that they need personal information to prevent accidents, which is directly linked to protect workers’ health. It is a time to clarify the limit of accessing to the personal information when the labor is asking unambiguous process of epidemiology research and opening of its result even though it refuses to open the information. In that sense we need to identify what they are claiming from each side to forge a clear relationship between people’s right to know and obligation to provide personal information, which needs to be reflected on the amendment process of OSH act. As of now legal background of workers’ health check-up is written on the Article 43 of OSH Act which follows the Korean Labor Standards Act. The Korean Labor Standards Act finally follows the Constitution to protect health of workers, which as a result gives a legal permission to conduct a special medical check-up of workers. Meanwhile, protection of personal information has a legitimacy based on the right to control one’s own information and right to decide one’s own information, derived from the Article 17 of the Constitution, which says one’s right towards freedom and private life not to be violated. These two grounds require us to review and clarify the legal back ground of special medical check-up of workers.

The number of workers under the commonly called indirect employment has steadily increased from 1997 in Korea. This is resulted from the hard pressure to cut down the labor costs on the severe struggle for existence of global market in these days. As the result, using employers and sending employers take more profits but, dispatched workers are imposed sacrifice and the risk of industrial safety and health are transferred to the workers in this process. This essay discussed about the indriect employment by investigating two acts. One is the regulations about the obligations of employer about the safety and care on the Occupational Safety and Health Act(OSHA), and the other is Act on the Protection of Dispatched Workers(APDW). The worker dispatch contract means an agreement prescribing worker dispatch between a sending employer and a using employer. If workers working dependently in the using employ's workplace under the instruction, the responsibility of the employer is shared between contractor or using employer and subcontractor or sending employer about the safety and health by the OSHA, APDW and the contract law. Nowadays, jobs suitable for worker dispatch are widely increased in the service industry. So the regulation about the responsibility and obligation of security of using employer and contractor should be changed from the negative rule to the positive rule for protecting the labor's right under the Constitution Law. The legal basis of these responsibility is derived from 'special contact on the triangle relation of in-house indirect employment by the article 29 of OSHA and the precedent of the Supreme Court. And there are two unsettled problems related with the this area. The one is some core articles of OSHA are not a mandatory provision, The other is shared responsibility of contractor in OSHA covers only 8 industrial section.

Author has been studding on the Strikes of the America, Japan, Korea respectively. It is final ends that I find out the differences of the legal theories of the Strike between those countries. This article is one of the Studies scheduled. Conclusions, therefore those conclusions are only provisional, are as follows: First, a offensive lockout is permissible. The Supreme Court of U.S.A. held that a offensive lockout is also able to be lawful under all circumstances, and changed a traditional NLRB's decision that only a defensive lockout is justified in principle. According to the Court, in case of the Whipsaw Strike, an another employer who is not a party to the strike can lockout its employees. However, the employer could not lockout against no-lockout clause of the collective agreement. Second, even after the lockout, an employment concerned can operates continually its business through using temporary replacement workers. Where an employer has only antiunion motivation in using replacement workers, it should be an unfair labor practice by the employer. According to the Court of Appeal, furthermore, the employer could also contract its business locked out. It is, however, arguable that whether he or she uses permanent replacement workers or not for lockout. Though the Court of Appeal takes a position against it, because the NLRB does for it. Third, the parties to the collective agreement must take a certain notice obligation by the NLRA Sec.8(d) to renew the valid agreement. Where an employer lockouts against the clause, it should be unlawful, and it also would be an unfair labor practice. Fourth, a Court of Appeal has strongly find a partial lockout unlawful. On the contrary, the NLRB has interpreted it as lawful, in this point of view there is also arguable with respect to the justification of the lockout in U.S.A. Fifth, the locked out employees would be protected by an unemployment compensation system under the state law level such as the California State, the Illinois State, the New Jersey State etc. Finally the Clayton Antitrust Act of 1914 exempts labor union from the antitrust responsibility. It is generally called 'statutory labor exemption'. The Supreme Court has here established 'nonstatutory labor exemption' to protect the parties, especially weighing a party of the employer, to the collective bargaining.

일본은 다른 나라와 달리 급속도로 고령화가 진행되고 있으며 이미 2006년에는 초고령화 사회(超高齢化社会)에 진입했다. 이러한 속도로 진행된다면 2035년에 3명중에 1명, 2055년에는 2.5명중에 1명이 65세 이상의 고령자가 될 것으로 예상되고 있다. 이러한 고령화의 원인으로는 의료기술의 발전과 사망률저하, 평균수명연장, 여성의 사회진출로 인한 만혼화ㆍ만산화로 인한 출생률의 저하 등이 있다. 또한 고령화의 문제점으로서 75세 이상의 후기고령자의 증가, 요양간호가 필요한 고령자의 증가, 사회적 입원 즉 본래의 치료목적으로 병원에 머무르는 것이 아니라 치료할 필요없이 장기입원을 계속하는 상태 등이 제기되고 있다. 이와 같은 상황에서 네덜란드에서 시행되고 있는 고령자 복지제도는 ‘자립’, ‘공생’이라는 장래의 복지사회 정책을 수립하는 데에 있어서 큰 의미가 있으며, 향후 일본의 고령자 복지모델의 하나가 될 수 있다고 생각된다. 이를 위해서는 국민의 동의를 얻어 저복지저부담(低福祉低負担)에서 고복지저부담으로 나아가는 정책이 필요하다. 현재 일본은 큰 재정난 하에서의 복지정책에 필요한 재원부족을 보충하기 위한 방안으로 사회보장과 세금의 일체화개혁을 추진하고 있다. 국회에서는 재원확보를 위해 소비세를 현재 5%에서 2014년 8%, 2015년 10%로 올리려는 논의를 진행 중에 있다. 초고령화 사회에 돌입한 일본의 현상을 볼 때 관련 문제를 해결하기 위한 방안 마련은 더 이상 미룰 수 없는 상황까지 왔다고 생각한다. 현재 일본의 사회보장지원금은 그것을 조달하는 재원인 사회보험료 수입을 크게 초과하는 상황에 있으며, 이 차액분은 주로 국가나 지방자치단체의 조세부담으로 조달되고 있다. 2010년 일본의 사회보장지원금은 105.5조엔이며 그 내역은 연금 53.2조엔, 의료 32.1조엔, 간호ㆍ복지 그외 20.2조엔이었다. 그러나 2015년 116조엔, 2025년에는 141조엔으로 증가할 것으로 예상되어 근로세대가 그 버팀목으로서 안정한 재원을 확보할 수 있을지가 큰 과제가 되고 있다. 이와 같은 상황에서 기업에 대해 정년퇴직 후의 희망자 전원을 65세까지 의무적으로 고용하도록 하는 내용을 담은 ｢고연령자고용안정법｣의 개정은 관련 문제를 해결하는 하나의 유익한 정책이라고 할 수 있다. 또한, 최근 일본에서는 지금까지 실시되었던 국가의료보장 정책을 재검토하게 되었는데, 이에 따라 65세 이상의 고령환자가 장기에 걸쳐 입원할수록 국가가 병원에 지불해야 하는 진찰보수를 줄이기 위해, 병원경영상 환자의 신속한 퇴원을 요구하는 사태가 일어나고 있다. 입원일수의 장기한도는 2개월이라고 한다. 현재 환자의 8%가 병원에서 사망하고 있으나 장래에는 5%가 병원에서 사망하며 나머지 5%가 치료도 충분히 받지 못하며, 자택 등에서 사망할 것으로 예상되고 있다. 환자가 병원을 옮기거나 다른 시설에 들어가기 위해서는 월 15만엔 내지 20만엔이 지불되어야 하며 이와 같은 비용은 연금생활의 고령자에게는 큰 부담이 되고 있다. 일본정부는 주택의료 및 주택간호에 투입되는 예산액을 매년 증가해오고 있으나 가족 등의 간호력, 간호설비 등의 환경이 아직 갖추어지지 않은 가운데 매우 어려운 상황을 보이고 있다. 계속 심화되고 있는 고령자 고용 및 고령자 의료보장의 문제에 효율적으로 대처하기 위해서는 사회보장지원금, 간호보험재정의 동향을 충분히 고려해야 한다. 초고령화 사회에 대응하기 위한 새로운 복지정책의 수립이 절실히 요구되고 있는 지금이다.

This author has examined the criteria for calculating the amount of ordinary wages and analyzed the difference on the meaning of ordinary wages between the judicial rulings in the past and the Supreme Court Ruling March 29, 2012, 2010da91046. Wages in the Labor Standards Act(LSA) means wages, salaries and any other money and valuable goods an employer pays to a worker for his/her work, regardless of how such payments are termed. Ordinary wages means hourly wages, daily wages, weekly wages, monthly wages, or contract wages which are determined to be paid periodically or in lump sum to a worker for his/her prescribed work or entire work. An employer shall additionally pay the fifty percent or more of the ordinary wages for extended/holiday/night work, and pay dismissal advanced notice allowance and other legal allowance based on ordinary wages. Therefore the classification criteria of individual wage items based on ordinary wages is very important. Especially the debate on whether the periodic bonuses are included in the ordinary wages has been continued in the related judicial rulings and administration interpretation. According to the Supreme Court Ruling March 29, 2012, 2010da91046 the quarterly bonuses on a regular basis is equivalent to the ordinary wages, because it is a wage item which is determined to be paid regularly and uniformly to a worker. This author argued that the current wage system which is dualized into the ordinary wage and average wage should be improved with a classifying criteria in rationality and fairness because it is very ambiguous and difficult to calculate the amount of a worker's ordinary livelihood wages.

憲法の立法政策的に労使間の労働関係で認められる労働基本権(団結権、団体交渉権、団体行動権)を憲法上の権利として明文化することが妥当かどうかが問題になる。労働基本権と関連し、韓国の‘憲法’及び‘労働組合及び労働関係法’とほとんど類似した法体係及び法条文を持っている現在の日本の‘憲法’及び‘労働組合法’と関連して、特に、日本が1945年に第2次世界大戦で敗戦国になることで、連合国軍総司令部(GHQ)による占領期の労働基本権体制の進展過程を考察する。その理由は、日本の労働法の体系を成す主な立法は連合国軍総司令部占領期で制定ㆍ改定されたからである。当時、連合国軍総司令部が日本の労働基本権と関連する憲法と労働組合法の制定ㆍ改定過程において、いかなる直接ㆍ間接的な影響を及ぼしたのかについて考察する。このような研究作業は、下位の法律主旨から憲法上保障されている労働基本権を限定しようとする意図ではなく、時代の変化による政治経済的な力学関係において関わっている法の制定ㆍ改正に関与している主体に対する痕跡を見ている。連合国軍総司令部の対日本占領政策は日本の社会民主化の政策として労働者保護と労働組合の結成を奨励する政策を推進した時期であった。これに合わせ、1945年12月に、‘旧労働組合法’を制定(1946年3月施行)し、また1946年11月‘憲法’の制定(1947年5月施行)した際に‘労働基本権(第28条)’で明文化した。そして、1949年に‘労働組合法’を改正したのである。この論文の議論過程では、まず1945年以後連合国軍総司令部占領期に日本の労働基本権の進展過程(日本の労働者の労働状況、労働基本権の意味の歴史)を考察し(Ⅱ)、日本の労働基本権と係わった法規定(マッカーサーの草案と日本憲法第28条、連合国軍総司令部と労働組合法の改定)を見て(Ⅲ)、そして団体交渉ㆍ団体協約を中心に改定された憲法及び労働組合法からの示唆点を導く(Ⅳ)。最後の結論としては、全体の内容をまとめて、示唆点(經費援助-組合專從者の給与支給禁止, 団体協約の有效期間と一方解約, 団体交渉拒否, 団体交渉または協約締結圏の制限)を導出する(Ⅴ)。結局、日本で連合国軍総司令部占領期に、労働基本権と関連する憲法と労働組合法の制定ㆍ改正過程を洞察することで、歴史的に類似な経験をしてきた韓国としては、労働立法に少なからぬ影響を受けてきた労働法の解釈に、重要な示唆点と教訓を探すことができると思う。

In this year's wage negotiations(bargaining), an ordinary wage has emerged as the hot potato. Recently the Supreme Court ruled that "Regular bonuses can be included in the ordinary wages". After it remanded the case to the High Court, the legal battle over the ordinary wages entered a new phase. Ordinary wages are the basis of the calculation of additional wages, advance-noticed dismissal allowances and an annual paid leave allowances. If regular bonuses are to be included the ordinary wage in the wage negotiations, the wage would be increased very much. After all, it will cause wage rises, heavy financial risks of employers. Moreover, under our nation's wage system that the employer gives employees many various benefits in addition to the basic salary, the ripple effect will be even greater. Employers wouldn't give employees the various allowances that they have given for years, or decrease the benefits. Then, the workers would prefer to work overtime to increase their salary. As a result, the work environment would get worse. So we can't be just happy about that the court has expanded the scope of the ordinary wages. The judgment is checking 'the regularity', 'the equality', and 'the fixedness' which the court considers the judging indicator of the case and it's also emphasizing the ordinary wage concept in an Enforcement Decree of the Labor Standards Act. But that they have been specified in collective agreements as the basis of payment is not the judging indicator of the ordinary wage, but of the wage. That the court rules that the same amount of money should be paid when it says about the equality makes the meaning of equality limited excessively. Also, about the fixedness, the Supreme Court decides that it's okay if the standard of payment calculation is established in collective agreements in advance. However, as the collective agreements are changeable because they can be renewed, it is regarded that the court expands the range of requisites for the fixedness. The Supreme Court remanded the case to the High Court because of the insufficiency, and left the decision to the High Court. In this respect, this judgment has limitations because it doesn't decide whether the regular bonus belongs to ordinary wages or not.