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논문 상세정보

근로계약법 제정과 적용대상에 관한 고찰

A Study on Target of application and Legislation Labor Contract Act

노동법논총 v.14 , 2008년, pp.9 - 38  
김진영
초록

Recently, many countries are enacting the law of labor contract in order to establish or regulate a new order in labor contracts resulted from the diversified forms of labor, and the reduced importance of labor unions. The need for the law of labor contract is increasingly debated in Korea as well, with propositions at varying levels, such as securing national competitiveness in preparation of globalization, or establishing unified laws to systemically regulate labor relationship. All these propositions agree that the need of a capable and well suited new law that reflects the shifts in labor law paradigm and labor market mechanism is self-evident. Furthermore, there has been an increase of incentives and merit-based payment system, as well as employment of contingent staffs in recent years because of businesses adjusting hiring and personnel management strategies to cope with shifting business environment. As personnel management strategies becoming more individualized and diversified, laborers started to prefer self-regulating work in which they can realize creativity and professionalism with a higher level of motivation to do so. This change allowed employees to negotiate working conditions with the employers on equal ground in reality, making compromising any disputes between employees and employers in a swift and proper way more important. Doing so calls for an equitable and transparent rule as a basis of reference. On the other hand, there is a concern that the purpose of the law of labor contract being misinterpreted as ‘breaking away from law protecting employees’, and used as a base to lessen the protection or apply more responsibilities of fidelity on employees. However, it is an undeniable fact that the definition of employment is changing and there are employees who can stand on equal terms with the employers armed with personal ability and professional knowledge owing to the diversification of employee-subordination levels. Even so, such employees are a rarity, and can’t be considered as a major cause in diluting the protective property of the Labor Law, not to mention of its necessity in the future. Furthermore, it would be impossible to abolish or revise the Labor Standard Act otherwise while protecting employees and maintaining the constitutional living rights to a minimum standard. Therefore, separating the Labor Standard Act from the Labor Law would be preferable to reorganizing the Labor Standard Act into the Labor Law. Meanwhile, it is necessary to define the contracting parties and the nature of contracts if the law of labor contract is enacted. The Labor Law uses old terminologies to define the contracting parties - the employee, who provides a subordinate form of labor, and the employer, the consumer of such provided labor. But this traditional definition alone isn’t enough to identify who are the employee and employer these days. Identifying the employer of a contract is becoming difficult in an increasing number of cases, in which a complex relationship of involved business entities exists. Therefore, it is questionable if one should apply the traditional subordination based terminologies to the law of labor contract unmodified. Considering the purpose of the enactment of the law of labor contract is to clarify the right-responsibility relationship of contracting parties, preventing unnecessary disputes stemmed from diverse forms of employment, there wouldn’t be a need to narrowly define contracting parties. This is so because establishing a clear rule to quickly respond to future changes in labor environment is the legislative task at hand.

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