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노동법논총 [The Journal of Labor Law]

간행물 정보
  • 자료유형
    학술지
  • 발행기관
    한국비교노동법학회 [The Korea Society of Comparative Labor Law]
  • ISSN
    1229-4314
  • 간기
    반년간
  • 수록기간
    1998~2018
  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 344.01
제41집 (10건)
No

硏究論文

1

한국의 근로자파견 법제와 실태

김기선

한국비교노동법학회 노동법논총 제41집 2017.12 pp.1-29

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Das koreanische Arbeitnehmerüberlassungsgesetz wurde 1998 erlassen. Die Arbeitnehmerüberlassung ist jedoch nach wie vor umstritten. Einerseits wird vertreten, dass das Arbeitnehmerüberlassungsgesetz dereguliert werden muss, um die Schaffung von Arbeitsplätzen und die Flexibilität der Beschäftigung zu erhöhen. Die andere Seite meint, dass die Arbeitnehmerüberlassung abgeschafft werden sollte, weil sie zu niedrigen Löhnen und prekäre Beschäftigungen führen. Dieser Beitrag bezweckt, dass das Recht über die Arbeitnehmerüberlassung und derer aktuelle Situation in Korea auf dem Korea–Japan Labor Law Forum vorzustellen. Daher wird zunächt die legislative Rahmenbedingunen und die Änderungen des koreanichen Arbeitnehmerüberlassungsgesetz und dessen Rechtsfragen in den letzten 20 Jahren untersucht. Im Anschluss daran wird die tatsächliche Situtation der Arbeitnehmerüberlassung in Korea dargelegt. Schließlich wird festgehalten, dass die Änderungen des Arbeitnehmerüberlassungesetzes notwendig ist.

6,900원

2

韓国の労働者派遣法制と実態

金基善

한국비교노동법학회 노동법논총 제41집 2017.12 pp.30-43

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4,600원

3

한국의 파견근로자에 관한 차별시정제도와 사례

김홍영

한국비교노동법학회 노동법논총 제41집 2017.12 pp.45-61

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In temporary agency relations (i.e. dispatched labor relations), there may be disparity between working conditions of temporary agency workers and working conditions of workers employed by a user company. According to Article 21 of the ACT ON THE PROTECTION, ETC. OF TEMPORARY AGENCY WORKERS (“Temporary Agency Workers Act”), “No temporary work agency nor user company shall give discriminatory treatment to any temporary agency worker on the ground of his/her employment status compared with other workers engaged in the same or similar kind of duties at the business of the user company.” Also, in Korea, any temporary agency worker who has received discriminatory treatment may file a request for its correction with the Labor Relations Commission. Where the Labor Relations Commission determines that the treatment in question is discriminatory after completing an investigation and inquiry, it shall issue a corrective order to the employer. The discrimination correction system are regulated by the ACT ON THE PROTECTION, ETC. OF FIXED-TERM AND PART-TIME WORKERS (“Fixed-term Workers Act”). It can be seen that the discrimination remedy system for temporary agency workers in Korea is considerably different compared with the obligation to consider balancing against dispatching business owners in Japan. In Korea, it is distinctive in that the discriminatory treatment for temporary agency workers is prohibited, and the Labor Relations Commission has a procedure that can be remedied by issuing a corrective order for discriminatory treatment. In this paper we will consider the discrimination correction system related to temporary agency workers in Korea and specific examples, which are the recent cases of judgment by the Labor Relations Commission. In order to be recognized as discriminatory treatment and to issue a corrective order, it is necessary to satisfy a plurality of requirements and there are some aspects which are difficult to achieve substantial relief. On the other hand, changes in interpretation and institutional improvements are being made to ensure the effectiveness of relief (for example, double compensation). It may be difficult to conclude “Success” and “Oversphere” of the discrimination correction system at the moment that it is only over 10 years since the introduction of discriminatory remedial procedures.

5,100원

4

4,900원

5

남녀고용평등법의 쟁점에 대한 고찰 — 차별금지와 직장 내 성희롱을 중심으로 —

심재진

한국비교노동법학회 노동법논총 제41집 2017.12 pp.79-119

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This paper shows that although the Equal Employment Act was established for 30 years since the enactment of the 1987 Act, many provisions of the Sex Discrimination in Employment Act(SDEA) have not been applied to the development of interpretation. First, in the case of the prohibition of direct discrimination, there is no case law on the justification of different treatment. In the case of the prohibition of indirect discrimination, there is virtually no case where it is applied, and it is meaningless to discuss the case law. The prohibition of sexual harassment in the workplace is also insufficient to discuss the development of judicial jurisprudence with respect to the meaning of “sexual harassment in the workplace” under the SDEA. In this situation, the interest in the SDEA lies more in the way of making it more effective than it is now. However, this paper also identifies fundamental problems that require further consideration. It is ‘indirect discrimination’, ‘equal pay for equal labor value’ and ‘transfer of burden of proof’. They have been introduced into the SDEA at a relatively early stage, but have little effect as originally intended. According to the most recent OECD statistics, the wage gap of women compared to men in Korea is the highest among OECD countries, and this ratio is not much different from that of the early 2000s. In such a situation, it is a big problem that the important provisions of the Equal Employment Act are not functioning in court judgments. In the future, it should be carefully scrutinized Whether these problems are caused by the passivity of the government or the court that enforces and interprets the law, or whether the provision itself is made without considering the characteristics of the law considering the reality of the law in Korea.

8,700원

6

경영상 해고 관련 판례 및 입법 동향 분석

한인상

한국비교노동법학회 노동법논총 제41집 2017.12 pp.121-159

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Das Arbeitsnormengesetz fordert strenge Anforderungen für die Entlassung von Arbeitnehmern. Die Kündigung ist nur gültig, wenn ein gerechtfertigter Grund vorliegt. Insbesondere sieht der Gesetzgeber strengere Anforderungen an Entlassungen vor, die auch ohne Verschulden des Arbeitnehmers entstehen können. Artikel 24 des geltenden Gesetzes sieht vor, dass die vier Voraussetzungen für eine Kündigung gerechtfertigt sind. Erstens muss ein "dringender betriebliche Erfordernisse" bestehen, damit die Kündigung gerecht und rechtswirksam ist. Zweitens muss der Arbeitgeger alle Anstrengungen unternehmen, um eine betriesbedingte Kündigung zu vermeiden. Eine betriesbedingte Kündigung kann nur als letztes Mittel verwendet werden(ultima-ratio-prinzip). Drittens muss der Arbeitgeber bei der Auswahl entlassener Arbeitnehmer faire und angemessene Standards erfüllen. Schließlich muss der Arbeitgeber vertrauensvoll mit dem Arbeitnehmervertreter verhandeln. Trotz dieser strengen Rechtsvorschriften hat der Gerichtshof die Anforderung durch seine Entscheidung bisher gelockert. Viele Wissenschaftler des Arbeitsrechts und Gesetzgeber kritisieren diese Tendenz der Entscheigung. Derzeit laufen eine Reihe von Gesetzesinitiativen, um eine betriesbedingte Kündigung zu verbessern. Die gesetzentwürfe enthalten die oben erwähnte Kritik. Die folgenden Punkte sollten im Gesetzgebungsprozess der betriesbedingten Kündigung berücksichtigt werden.. Die Tatsache, dass die Entlassung in den Arbeitsverhältnissen in letzter Instanz durchgeführt werden muss, dass die betriesbedingte Kündigung einen großen Einfluss auf die Gesellschaft und die hohen Kosten des Konfliktes hat, und dass der Gesetzgeber in erster Linie die betriesbedingte Kündigung unter den strengen Forderungen erlaubt hat.

8,400원

7

일본의 동일노동 동일임금의 실현을 위한 비정규직법 개정 논의와 시사점

김진영

한국비교노동법학회 노동법논총 제41집 2017.12 pp.161-190

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Since long ago, discussions have continued to correct the discrimination according to the form of employment, non-regular employment in South Korea and Japan. In addition, at the center of the discussions, there was the principle of “equal pay for equal (value) work” that if one does the same work (labor with the same value), one should get the same pay (equal treatment). The principle played an important role in systematizing the system for the prohibition of sexual discrimination in employment in South Korea and Japan, but it was not acknowledged as the ground for the regulation of discrimination according to the form of employment. However, the increase of non-regular employment causes various social problems such as low birth rate and aging phenomenon as well as the increase of the population of poverty or the increase of social security costs. Like this, South Korea and Japan sought a solution for a legislative policy to correct the gap in the treatment of non-regular employees with a similar historical background and have shown different aspects in the process of developing legislation. To compare legislation in the two countries, briefly, concerning labor conditions, Japan regulates the treatment of non-regular workers by equal treatment and balanced treatment (prohibition of unreasonable labor condition) as compared to regular workers and judges the irrationality of discrimination, considering the contents of job, the range of placement change and other circumstances. On the other hand, South Korea does not have a regulation on the equal treatment of regular and non-regular workers and just prohibits disadvantageous treatment without a reasonable cause, concerning the gap in labor conditions, etc. (balanced treatment) The reasonable cause is not specified in the law, concretely, but it depends on interpretation. Since in South Korea, discriminatory treatment is judged, according to whether there is “rationality” or not, the judgment of rationality is the core of this system, and preparing unified standards is an important challenge. In this sense, the contents of the guidelines for equal pay for equal work in Japan or the outline of the bill, which promote the clarification of the judgment of irrationality, can be referred in judging discrimination remedy. In the meantime, in South Korea, discussions continue, concerning the equal treatment of regular workers and non-regular workers. Concretely, it is left to an interpretation, whether the form of employment should be included in “social status” in the regulations on equal treatment (Article 6) of the Labor Standards Act, or whether the cases in which there are no “reasonable causes” in the fixed-term and part-time employee protection act can be subject to equal treatment. In addition, how to resolve the gap in the treatment between regular workers and non-regular workers, which depends on interpretation like this, comes to the fore as a task, legislatively, so it is judged that precedents in Japan can be referred for South Korea’s legislative policies.

7,000원

8

최저임금법상 문제점과 해결방향

이달휴

한국비교노동법학회 노동법논총 제41집 2017.12 pp.191-219

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It is stipulated in the constitution article 32 that the State shall endeavor to promote the employment of workers and to guarantee optimum wages through social and economic means and shall enforce a minimum wage system under the conditions as prescribed by Act. Based on this clause, All employees shall have the right to demand the state guarantee of the minimum wage, So the state enacts the minimum wage act for the employees. It is stipulated in the minimum wage act article 1 that the purpose of this Act is to stabilize workers' life and improve the quality of the labor force by guaranteeing them a minimum level of wages, thereby contributing to the sound development of the national economy. The purpose of constitution article 32 is well reflected in this stipulation. The right of the environment for work could be divided into the result and the process working conditions. This is a spacial and temporal environment in the process of labor and that is the result calculated on the basis of process working conditions and the minimum wage is the reflection of the result working conditions. According to the right to work, the function of minimum wage is divided into four sections. Those are the function for minimum limit of labor value, distributive function and minimum guaranteed function for employees’s life, function of labor inducement, foundation function of fair competition. I claimed tha the problems of scope of application in minimum wage act are persons employed for household work, handicapped workers, trainee workers and could be settled on labor value. In addition, I suppose that the cost of living for workers and their families should be the benchmark as the decision criterion of minimum wage and that minimum wage should be calculated in accordance with regular wage for settlement of industrial disputes.

6,900원

9

장애인 직업재활시설과 근로장애인에 대한 최저임금 배제 — 한국, 독일, 미국의 법제 비교를 중심으로 —

조성혜

한국비교노동법학회 노동법논총 제41집 2017.12 pp.253-311

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In Korea Section 7 of the Minimum Wage Act allows exemptions from the minimum wage in the case of employee whose productivity is seriously impaired by mental or physical disabilities. Any employer otherwise required to pay the minimum wage can obtain authority from the Department of Employment and Labor to pay the lower wage rates permitted by law. The most person to whom the exemptions apply are people with disabilities in sheltered workshops. Sheltered workshops were conceived as facilities where employment opportunities were set aside for employees with disabilities, usually at a low wage, and were sheltered from competition by individuals without disabilities. They also provided an opportunity for people with significant disabilities to pursue a life that included work, socializing, and a sense of belonging. Sheltered workshops were seen as progressive, and a means of employing those who could not compete for jobs in the community. Exempting disabled employees from the minimum wage, however, would be likely to increase discrimination against disabled people by giving a signal to employers that disabled employees can be treated less favorably. In this regard Korean disability rights organizations have opposed minimum wage exemptions for the person with disabilities on the grounds of discrimination based on disabilities. But Korea is not the only country involved in policy issues regarding the employment of people with disabilities in sheltered workshops and minimum wage exemptions. Similarly, many countries have made use of sheltered workshops for employment of the disabled. The debate over sheltered workshops and the minimum wage exemptions is part of a larger issue of the employment needs of people with significant disabilities in most countries. This study provides an overview of the policy measures to encourage the employment with disabilities particularly in sheltered workshop and minimum wage exemptions in Korea. It will trace the history of the use of sheltered workshops and disability law policy in Germany and the United States. Next, it will examine existing laws and policies on the employment of disabled persons in sheltered workshops in these countries. The arguments for and against the use of sheltered workshops and minimum wage exemptions will also be considered in this article. Finally, it will be argued that Korean policymakers should find alternative minimum wage exemptions for the disabled, possibly through the use of sub-minimum wage or the difference pay between sub-minimum wage and average wage by the state. Especially disabled employees with very low levels of productivity should helped through supported employment programmes, subsidized through the state.

11,400원

10

7,800원

 
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