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근로관계에서 사용자의 취업시킬 의무와 근로자의 휴식

Employers Duty of Employment and Breaks for Workers

법학연구 v.28 no.2 , 2017년, pp.301 - 327  

In the labor relation of modern society, as employers introduce high-level of technical innovation and the reinforcement of labor management such as automation and mechanization of the means of production for profit maximization through growth of production to production process, workers had no choice but to face the simplification of labor or reinforcement of labor intensity and the increase in working speed, etc. At the same time, due to the introduction of night work or shift system, labor condition, labor contents, working environment, etc. assigned to workers are likely to cause workers' health obstacle, and besides they are acting as the factors that injure workers' health by increasing their physical and mental fatigue. Moreover, due to poor surroundings such as poor safety, health and relaxation facilities, etc. for capital saving according to employers' profit maximization, workers' health is not secured, and their rights to life are being threatened. Article 36, section 3 of our Constitution provides that the State has an obligation to create healthy life environment and practice positive health policy. However, while the people's constitutional right to health is their rights to the State, in labor relation, it means workers' rights to the employers. Therefore, for keeping workers' health, comprehensive consideration obligation to safety and health, etc., consideration obligation to safety, health, etc. have been given to employers, and in the Industrial Safety and Health Act made independently from the Labor Standard Act, regulations or measures have been introduced not only for industrial accident prevention but for workers' health maintenance. In the labor relation, since workers' health problems are occurring in correlation to complex factors such as labor condition, labor contents, working environment, etc., employers and employees should resolve it collaboratively. In the labor relation, health problem due to direct working supply is important, but it is thought that preparation and breaks for working supply seriously affect workers' health. Accordingly, employers are obliged to prepare break rooms that mean spaces in the work places for workers to take breaks in the work places by releasing their physical fatigue and mental stress in their off-duty hours. It is thought that this is also employers' ‘considerate obligation,’ and applies to ‘an obligation to employ workers’ in a wide sense. If this paper can draw a matter of workers' breaks from ‘considerate obligation’ and ‘obligation to employ workers,’ it is that the paper intends to investigate through the interpretation of Law where the idea of obligation and contents required from employers for employing workers practically and making payment to them exist, and how they are legalized, and in order to draw a clearer distinction between obligations and legal liability of employers and employees, it intends to investigate what legal effects occur in case employers fail to perform the cooperation behavior that is their obligation(Obliegenheit).

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