Earticle

The custom of employment in Korea is based on a lifetime employment system which guarantees a regular retirement age. The wage system is, furthermore, also based on proportion to the length of service rather than the performance-related pay system. Under these customs of employment, the interpretation is natural that a dismissal for managerial reasons should be strictly and narrowly restricted. Here authors intend to analyze and criticize the case law on dismissal for managerial reasons by the Supreme Court of Korea. Conclusions are as follows: First, Article 24(1) of the Labor Standard Act(LSA) provides that an urgent managerial needs is required to dismiss employee(s) for managerial reasons. The Supreme Court holds that a future managerial crisis is also included in an urgent managerial needs above. Authors suggest, however, that a future managerial crisis should not be included in the urgent managerial needs, because this requirement should be narrowly and strictly interpreted. Second, Article 24(3) of the LSA provides that an employer should consult in good faith with the representative of its employees to dismiss for managerial reasons. The Supreme Court holds that it is possible for an employer not to consult with the representative where a labor union or another employee’s organization is not. Authors suggest, however, that this consultant procedure should be interpreted as an absolute requirement by the LSA to dismiss for managerial reasons. So we suggest that the dismissal for managerial reasons is never be justified without the consultant procedure. Third, it is a definition of the representative. The Supreme Court holds that, where a dismissal for managerial reasons includes non-union members, the employer should consult with the representative of the non-union members. Authors suggest, however, even though the dismissal includes the non-union members or only non-union members, the employer could and should consult with the representative of its employees including non-union members. In this case, where the representative fails to represent in good faith the non-union members, the representative may take responsibility of civil liability etc. against the non-union members. Finally, Article 24(3) of the LSA also provides that an employer shall give a notice 50 days prior to dismissal day to the representative. The Supreme Court holds that, where the employer has a sufficient consultation with the representative, the employer could give a notice of shorter days than 50 days above. Authors suggest, however, that a notice 50 days prior to the dismissal day in principle should be kept. Of course after a notice of the 50 days above by the employer, both the employer and the representative could shorten a period of consultation by reaching an agreement.

The Anti-Discrimination Against and Remedies for Persons with Disabilities has been enforced since 2008 in Korea. This Act defines person with disability as a person who has a disability(art.2(2)). In the Act, disability means an impairment or loss of physical or mental functions that substantially limits an individual’s personal or social activities for an extended period(art.2(1)). The definition of disability in this Act represents the medical model, focusing as it does on the functional limitations of a person. Such a definition could screens out many disabled person who are victims of discrimination but do not match the “"truly disabled"” label. The purpose of this article is to provide a basic research on the legislative change of the definition of disability in the Act by studying the definition of disability in UN, EU and foreign discrimination law. Discrimination Law has the purpose to prevent unequal treatment which is rooted in stereotypes and stigma. The definition of disability in disability discrimination laws should not describe the group protected under the law, but rather define the act declared prohibited. Thus, a disability definition is necessary but only with respect to the act of discrimination. Disability- based prejudice and stigma are always related to an actual or presumed abnormality called impairment. The definition should be related to impairment, chronic illness or malfunctions and should not be based on a certain severity of disability.

In the case of a dispute over the unfairness of dismissal, a judgment should be made on the existence of a dismiss, which is the subject of judgment of unfairness. This problem has been dealt with as a matter of the burden of proof of the dismissal. However, when it is understood that dismissal is a unilateral termination of the employment relationship by the employer, the existence of the dismissal is the result of the evaluation as to whether the employment relationship has been unilaterally terminated by the employer. It itself is not the fact for proof. Indeed, the facts that the parties must prove would be objective facts that serve as an assessment of the existence of dismissal. On the other hand, in the case of civil litigation, the burden of proof for the grounds for dismissal must be borne by the plaintiff, the employee, who asserts it. This is considered to be the same in the procedure for Remedy from Unfair Dismissal of the Labor Committee, which is similar in litigation structure of civil litigation. However, in the case that the Central Labor Relations Commission is defendant, it should be viewed differently from the case of civil litigation in that either the employee or the employer are not parties to the litigation.

In Korea, the minimum level of wages for workers is guaranteed in order to stabilize workers’ life and the quality of the labor force. In 2018, the minimum wage is 7,530 won, and in 2019 it will be increased by 10.9% to 8,350 won. Meanwhile, Seoul Special Metropolitan City, Gyeonggi Province and other local governments are implementing the living wage policy separately from the minimum wage, which is regulated by the municipal ordinance of the local governments. More specifically, 100 local governments nationwide enacted the regulations on living wages. Besides 5 metropolitan local governments – Daegu Metropolitan City, Ulsan Metropolitan City, Gyeongbuk Province, Gyeongnam Province, Chungbuk Province - 12 out of 17 metropolitan local governments enacted living wage regulations. In 2018, the metropolitan local government with the highest living wage is Jeonnam Province (9,370 won) and the lowest metropolitan local government is Sejong Special Self-Government City (7,920 won). In this regard, it is disputable whether it is illegal to regulate living wages as ordinances. In this paper, I focus on the following points. First, since local governments can enact ordinances on ‘their affairs’, it is questionable whether matters concerning living wages belong to the affairs of local governments. Second, local governments can enact ordinances within the scope of statutes, so it is disputable whether the enactment of living wage regulations by local governments violates the Minimum Wage Act. Third, local governments must have the authority delegated by Acts in order to enact ordinances on matters concerning the restriction of rights or imposition of duties on residents. Therefore, in order to enact ordinances on living wages, it is questionable whether the delegation by Act is required. Fourth, the living wage ordinance of Seongnam City stipulates that a portion of wages can be paid with a local gift card, which is disputable if it is in violation of Article 43 of the Labor Standards Act, which requires wages to be paid with currency.

The workinghourssystem in labourlaw shows that if the intensity, risk, and burden of work are made in the form of work atmosphere or atmospheric work, unlike ordinary work, the regulation of labor law should be differentiated in terms of health rights . It is worth noting this. Our case is different. Regardless of the intensity of the work, only the working time is divided by the break time. The familial involvement in this biased system, too, is considered to be a complete working time, though it will depend on specific cases. Strictly speaking, as in Germany, the forms of atmospheric work, the working atmosphere and call work are judged differently by law, given the intensity of the work being affected by the worker's health. For example, 8 hours of actual working hours and 8 hours of working hours can not be equally regulated for workers' health rights. Here is the reason why Germany can relax the limitations of overtime work on the form of atmospheric work, and calculate and pay less wages than normal work wages. Regrettably, regulations on working hours in the current Labor Standards Act of Korea are too uniform. Unless the conceptual pluralism of working time is taken into consideration, it can not be reasonably responded to the reality of labor. Furthermore, the legislative imperfections in the gray zone of various working hours such as business trips and occupations can not be left unchanged. Spatial restraint and temporal restraint are the most typical signs of dependent labor. Working hours are considered to be the most disciplined areas that will undergo the greatest changes in terms of labor market flexibility. This does not just mean the need for management needs or economic volatility. This is in line with the individual needs of workers. It is necessary for the labor and management to construct a working time model that is most effective in terms of working time and reflects the needs of the workers.

The relief for legal right is taken in charge by the system of a series of legal disputes which consist of both application of appeals in administration and administrative litigation in courts in detail. These all play an important role, but this study mainly examines the application of appeals in administration and explores the administrative litigation in courts as necessary. The reason that chooses the application of appeals in administration(Focused on the objection or request for review ) is as follows. First of all, all of the statutes on the fields of the Act on Social Security require the prepositive principle of application of appeals. In this context, the application of appeals in administration is regarded as a first relief of legal rights on the fields of Act on Social Security. Second, with respect to the application of appeals in administration, the merit on the civilian's perspective is referred as the simplicity, speediness, and fee free. If a civilian who applies for appeals currently has needs that exist in the emergency considered on the characteristic of the fields of the Act on Social Security, this is required much stronger than other administrative fields. Third, after applying the application of appeals in administration, filing a suit in courts and three level judgments are guaranteed, but if considering the existence of needs and emergency, it is possible that a civilian who receives the relief of legal right by the application of appeals reluctantly waives filing a suit in courts. In this regard, the relief of legal right is fulfilled by the only application of appeals in administration in reality. Like this, the application of appeals in administration as the final relief of legal right on the fields of the Act on Social Security specially has the importance as the precondition that it is not easy to win administrative litigations. For the reality of the relief of legal right on the fields of the Act on Social Security, the main subject of study is limited as administrative appeals for review(objection, request for review or etc.) from the purpose of this study. It is necessary to analyze appeals for review on the fields of the Act on Social Security on any perspective. This study uses the first analytical tool, the perspective that the appeals agency for review is in charge of「positive exercise of its authority」. It is general to use the term, the ex officio principle related with the term, the parteienprinzip principle, but this study affectedly uses the independent definition of positive exercise of its authority in lieu of using the term of the ex officio principle. In addition, this study has the final purpose that intends to suggestions to the Korean laws through comparative study. Regarding decision of the subject country of this study, the reason why it chose the United Kingdom is as follows since the main purpose is to give the suggestions to the Korean laws.