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Injunctions on labor disputes can generally be categorized into two types: (1) injunctions for the purpose of prohibiting the overall labor dispute, and (2) injunctions with the purpose of regulating a specific aspect of the labor dispute. Injunctions for prohibiting the overall labor dispute is and injunction that prevents all aspects of the labor dispute in question if the labor dispute caused by the labor union is illegal or lacks justifiability status. For instance, should the labor union go on strike in direct violation of the duty of peace, or go on a strike for purely political purposes, the court would rule as such: “The debtor shall not act upon the labor dispute notified to creditor as of the date of the labor dispute resolution made on September 10, 2015” or “The debtor shall not act upon any labor dispute resolved by the labor dispute resolution as of September 10, 2015.” In some cases, this type of injunction may be accepted by the courts. However, acknowledging such type of injunction may encroach upon the Constitutional rights of organization and collective action, which in turn makes the court inadequate institution to rule on such matter of grand scale when an injunction demands for a quick decision, and is vulnerable to abuse by the employer. Therefore, even if the decision of whether the labor dispute in question is justifiable is relatively straightforward and the employer has responded with due care, the injunction for prohibiting the overall dispute shall only be made available under special circumstances whereby the fundamental Constitutional rights of organization and collective action is not infringed upon. It is preferred that the courts deliberate on the matter and induce the party to amend the claim for injunction to one of regulating a specific aspect of the labor dispute, or accept an injunction only on the condition of limiting the prohibition to the necessary extent by the court’s own right as in accordance with Article 305(1) of the Civil Enforcement Act of Korea. The lower courts have steered towards this type of ruling in the recent past. Meanwhile, the object to the supplementary indirect enforcement ruling to the injunction for prohibition of labor dispute should be the representative or other executive council members, not the labor union itself. Specifically, in the event of a breach in the duty of peace, the injunction for the prohibition of the overall labor dispute may be accepted as precedent by the courts show. Nonetheless, requesting for a prohibition on a specified illegal action is the preferable way, and we should note that even if there is a collective agreement in effect, in practice, the validity of the duty of peace is quite vague and there are a number of instances that can be considered an exception to the duty of peace clause. The injunction for the prohibition of the overall labor dispute can also be called for in the event the collective bargaining fails or the resolution lacks appropriate labor union members vote. Surely, such decisions should be deliberated with caution. In my opinion, such comprehensive injunction should not be accepted in the event of a breach in the duty of peace, and in the event of a breach of the mandatory arbitration clause, the decision should be made with consideration to the specific circumstances along with the principle of last resort and principle of proportionality. In the event the laborers act upon a labor dispute because the employer rejected collective bargaining for the reason of authentication voting, precedents have allowed for an injunction to be placed, nonetheless the fact that an authentication voting is invalid, there is room for doubt about the court’s rulings. In the event of violating the scope of member restriction, in consideration of the public interest and the specialty of the work of public servants and teachers, regulation regarding their labor dispute does carry weight, and therefore if public servants or teachers act upon a labor dispute in direct violation of the current rule on the prohibition of labor disputes, a comprehensive injunction will be placed for lack of justifiability. In the event the labor dispute violates the prohibition of violence clause, a comprehensive injunction would be accepted in rule, while if the labor dispute only infringes on the prohibition of safety protection facility clause that would not be the case.

According the Article 16, the labor union and labor relations adjustment act states merging must be done after being passed by the voting of the general assembly. The voting quorum should be 2/3 of the people voting ‘yes’ and the total number of people should be the majority of the involved unions. Additionally, according to the same law, Article 28 states dispersion of a labor union can be linked to the merging of such unions. As we can see, the law manages a small part of merging unions; however, requirements, procedures, and the effects of the merging is not specified and can only be relied on interpretation. The area which specifies on the merging of organizations is related to companies under commercial law. Commercial law is specific in regulating the resolution, motive, effects, invalidity, ect of the merging. Therefore when scholars interpret the emerging of labor unions, they make frequent reference to commercial law. However, due to fact there are many areas where companies differ from labor unions, applying commercial law without any examination to labor unions merging would be inappropriate. Although they do have the common characteristic of merging two basic groups, examination and research regarding the differences of labor unions and companies is needed. This is particularly emphasized regarding the merging procedure and effects. The foundation of labor unions is the unity of workers and thus the stronger the unity is, the more powerful the labor union becomes. This can hold important meaning for the improvement of working conditions of the labor union members. Therefore, the merging procedure should have the objective of strengthening unity among the workers while the effects should be made so the rights of the labor union is not trespassed on. Only if this is done correctly will the law meet the objectives of regulating the merging of labor unions.

The relationship between the prime contract user and the subcontract workers is based on contract for any construction work, rather than a direct employment contract. Therefore, as workers of the subcontractors, the subcontract workers are only the performance supporter to implement subcontract liability of prime contract company. But subcontract worker actually is transferred to labor group by sharing that work systematically to conduction of the prime contract company business. Therefore, in the between prime contract company and subcontract worker, there are labor offer relationship akin contract relation not contract of employment and in such a limit, it is possible to conceptualize that the person directly involved contract of employment. So, It is not meaningless thing to explain the labor offer relationship between the prime contract user and the subcontract workers. We should see that as members of the business performance community, subcontract worker, prime contract worker, and between user of prime contract and subcontract they bear high degree of cooperating duty. worker and user of prime contract aim diligent maintenance and subcontract worker is for full achievement of the contract objectives. It is finally positive when it is possible to consultation of various working conditions about all the circumstances for implementing cooperation duty. If it is subcontract relationship, in subcontract work performance process, all workers should be considerate mutually and participate in management is done in a reasonable range as one of the business partners. Today, production through the division between the two companies is often made. In this case, Occupational health and safety system need to accept the concept of production community. escaping from framework of a contractual relationship. That is, all personnel involved in the production community should be seen as having the property as a right subject and a obligation subject of occupational safety and health obligations system. It includes temporary position such as fixed term employment and subcontract worker, workers in special employment, and self-employed workers. In this respect, it is worth consideration that measure of enumerate clearly, but regulate bigly concept of employee.

Als Arbeitnehmerschutz werden die Maßnahmen, Mittel und Methoden zum Schutz der Beschäftigten vor arbeitsbedingten Sicherheits- und Gesundheitsgefährdungen verstanden. Das angestrebte Ziel ist die Verhütung von Arbeitsunfällen und der Schutz der Gesundheit der Beschäftigten. Die wirtschaftliche Abhängigkeit, die die arbeitnehmerähnlichen Beschäfigten von den Selbständigen unterscheidet, taugt zur Abgrenzung gegenüber den Arbeitnehmern nicht, das sie regelmäßig nicht nur persönlich, sondern auch wirtschaftlich vom Arbeitgeber abhängig sind. Ausserdem ist ihre soziale Schutzbedürftigkeit gerade der Vergleichsmastab für die Arbeitnehmerähnlichkeit der Beschäfitgten. Es kann festgehalten werden, dass die Vorgaben des Gemeinschaftsrechts zum Begriff des Arbeitnehmers bzw. des Beschäftigten nicht notwendigerweise auch wirtschaftliche Kriterien umfassen, sondern vielmehr die tatsächliche gefährträchtige Beschäfitgung in den Mittelpunkt stellen. Nicht jeder, der eine vergleichbare Tätigkeit ausübt, ist jedoch einem Arbeitnehmer verlgeichbar sozial schutzbedürftig, sondern vielme heraus der Einbeziehung in die vom Auftraggeber geschaffen und beherrscheten betrieblichen Organisationsstrukturen folgt. § 3 Abs. 2 ArbSchG ergibt sicht daraus, dass nach der Vorstellung des Gesetzgebers sämtliche Arbeitsschutzmassnahmen geplant werden müssen und in einer geeigneten Form zu organisieren sind.

인간은 누구나 행복하게 살고 싶고 또 그렇게 되기 위해서 노력하고 있다. 그런데 인간의 노력에도 불구하고 구조적으로 행복하게 살 수 있는 조건이 갖추어져 있지 않은 경우에는 인간은 타인이나 사회 또는 국가에 불평과 불만을 토로한다. 이러한 불평과 불만은 사회를 불안하게 하고 또한 사회통합을 저해한다. 사회불안이나 사회분열은 그 사회구성원들의 행복을 위협한다. 그렇기에 행복을 위해서 사회통합이 필요하며, 사회통합을 위해서 무엇을 이념으로 하면서 어떻게 노력해야 하는지를 살펴볼 필요성이 있다. 이에 먼저 사회통합의 개념 및 사회통합은 궁극적으로 인간의 존엄과 가치의 실현에 있다는 것을 살펴보았다. 즉 인간의 세계에서 사회양극화가 발생하지만 다른 한편으로 인간 이성은 사회통합을 위해 사회양극화를 완화하도록 한다. 그러한 노력의 궁극적 목적은 인간의 존엄과 가치의 실현에 두어야 한다는 것을 전제하였다. 인간의 존엄과 가치를 실현시키기 위해서는 인간 존엄성의 구체적 성질이 무엇인가를 고찰하여야 하며, 노력의 형태에 따라 사회통합의 소극적 방법과 적극적 방법으로 나누었다. 후자의 경우는 현대사회에서는 재정적 지원이 있어야 실효적으로 실현할 수 있다. 그러나 전자의 경우 현제도를 이용하면 쉽게 실현될 수 있는 방법이다. 왜 이렇게 생각할 수 있는가 그리고 전자의 제도적 방법이 효율적이고 능률적으로 실현되기 위해서 이러한 제도가 어떠한 근거에 도출되었는지 또는 무엇에 근거를 두고 있는지를 살펴볼 필요가 있다. 이에 근거로서 개인적으로 이성 및 감정과 자기애를 두면서, 이 요소가 상호간 어떠한 작용을 하는지 살펴보았다. 구체적으로 살펴보면 재산이 없어도 행복하게 살 수 있는 방법은 먼저 인간들 사이에 서로 인간존엄성을 침해하는 가해행위가 없어야 한다고 생각한다. 사회구성원사이에 가해행위가 시작되는 순간 분노와 증오가 나타나 사회의 모든 유대관계는 흩어지고 분산되어 사회통합을 이룰 수 없다. 이러한 분노와 증오는 감정과 이성 나아가 자기애에 근거하여 나타난다고 할 수 있다. 요컨대 이러한 감정과 이성 및 자기애가 인간의 존엄과 가치의 실현에서 구체적으로 상호작용 하기 때문에 그 상호작용의 정도에 따라 사회통합을 소극적 방법과 적극적 방법으로 나누어서 설명하였다.

Every human being wants to live a happy life and tries to achieve it. However, even they zealously struggle, if there are structurally no conditions to achieve it, they will always be prone to complains and feels dissatisfactions towards other people, social community or their own nation. These kinds of complains and dissatisfactions not only increases social instability, but also decreases social cohesion. Social instability and social disunion make members of the society unhappy. To achieve happiness it is necessary to unite the society, so it should be thoroughly examine on what kind of ideas are adequate for ideology and how can we exert more effort to accomplish social cohesion. So I firstly examined that the concept of social cohesion are consisting of realization of dignity and the importance of humanity. In terrestrial world, the occurrence of social polarization is inevitable, but we must do some efforts to relieve social polarization to achieve social cohesion. I looked at what is the specific nature of human dignity and then divided the methods of social cohesion into two parts according to different forms of approaches. The first one is the passive approach and the other one is the active approach. In this modern society, the latter cases can effectively become possible only if when there is any financial support, while the former could be easily accomplish by using the current system. What do we think or what is the foundation ideology of this current system? Hence I concluded human reasoning, emotions and self-love then examined how these elements interact. In a concrete manner, I think that if there are no any violations and abuses of human dignity then we can live happily even without a lot of property. Indignation and hatred arouses when we begin to commit any violation among the members of the society, so every social fellowship might be dispersed, therefore, social cohesion couldn’t be fulfilled. These indignation and hatred are caused by reasoning and emotions, by extension, self-gratification. Briefly, I explained social cohesion as two parts of passive and active approaches according to the degree of the interaction for these human reasoning, emotions and self-love specifically interact in realizations of dignity and value the importance of humanity.

최근 일본에서는 직장에서의 인간관계, 업무에 관한 스트레스, 장시간 노동 등 과중한 정신적ㆍ심리적 부담으로 인한 근로자의 정신질환 발병 및 자살이 사회적 문제로 떠오르고 있다. 특히 이와 같은 근로자의 정신질환 사안에 관해서는 산재청구건수 및 인정건수도 매년 증가하는 경향에 있으며, 나아가 실무에서 처음에는 정신질환의 발병이 업무와는 관계가 없는 개인상병으로 다루어지다가 후에 근로자로부터 업무상의 질병이라는 산재인정의 청구가 이루어지고 있어서, 이와 같은 경우에 사용자의 안전배려의무 위반을 이유로 손해배상을 청구하거나 개인상병으로 인한 휴직기간이 만료하여 실시된 해고 또는 퇴직처리가 무효화되어 그 처리 및 조정에서 복잡한 문제가 발생하고 있다. 위와 같은 근로자의 정신질환에 관하여 일본에서는 최근 주목할 만한 판결이 내려졌다. 일본의 토시바(우울증ㆍ해고) 사건과 아이후르(구라이프) 사건에서는 공통적으로, 우울증에 걸린 근로자가 휴직하면서 해당 휴직기간이 만료한 것을 이유로 실시된 해고 또는 퇴직처리의 효력과 임금청구권의 발생여부, 그리고 안전배려의무의 위반에 기초한 손해배상청구 등이 다투어졌다. 두 사건의 특징도 처음에는 개인질병(즉 업무외 상병)을 이유로 신청한 휴직이 휴직기간이 만료한 후에 업무상 상병으로 인한 휴직으로 인정되었다는 점에 있다. 이에 일본의 재판소는 두 사건에 있어서 휴직기간이 만료한 후에 이루어진 해고 또는 퇴직처리에 관해서 노동기준법19조1항의 해고제한을 위반하였다고 인정하면서, 해당해고 또는 퇴직처리 후의 기간에 관해서 민법536조2항에 근거한 임금청구권 및 안전배려의무의 위반에 기초한 손해배상책임을 인정하고 있는 점에서 동일한 판단구조를 가지고 있다. 본 논문에서는 일본에서의 근로자의 정실질환과 관련한 해고문제를 둘러싼 판례와 학설의 논의를 소개ㆍ분석하였다.

Recently, Japan has seen increasing cases of mental illness and suicide committed by employees due to various workplace issues that pose excessive mental or psychological pressure, such as interpersonal conflicts, job stress and overwhelming workloads. Following the emergence of this new social problem surrounding employees’ mental illness, the number of industrial accidents claimed and recognized has also kept rising every year. At first, these mental illnesses were treated as an individual health concern, rather than a workplace issue; however, affected employees later filed for industrial accidents, arguing that such mental illnesses constitute an occupational disease. In these cases, employees either sought compensation for an employer’s violation of its duty to ensure the health and safety at work. Or, dismissals or termination of employees whose leave of absence (initially taken due to individual health concerns) has expired were annulled, leading to complicated issues in handling and resolving these cases. There were several landmark cases on employees’ mental illness cases in Japan recently – cases involving Toshiba Corp. and Aifuru (formerly, Life). In both cases, a worker who suffered from a depression took a leave of absence, and was later dismissed or terminated on the grounds that his/her leave of absence expired. The court contended whether such dismissal was valid; if the employee’s right of claim for wages was justified; and if the employee has a right to claim for damages citing an employer’s apparent violation of its duty to ensure the health and safety at work, among others. In these two cases, the leave of absence that an employee applied to take due to individual health concerns (non‐occupational) at first was later recognized as the leave of absence caused by an occupational disease after such leave expired. Regarding these two cases, the court in Japan ruled that the dismissal or termination of employees whose leave of absence has expired would constitute a violation of restrictions on dismissal as provided in Article 19 Paragraph 1 of the Labor Standards Law. The court recognized in both cases employees’ right of claim for wages pursuant to Article 536 Paragraph 2 of the Japanese Civil Code and held the employer liable for damages caused by an employer’s violation of its duty to ensure the health and safety at work with respect to the period after such dismissal or termination. In my thesis, I will examine precedents on employee dismissal in relation to their mental illness issues in Japan and explore other relevant academic theories as well.