기간제근로계약에 있어 근로자의 계속근로기대법리

Abstract

As the great increase in the number of fixed-term workers reached at the point of threatening stability of the labor market, the Act on the Protection, etc. of Fixed-term and Part-time Workers was enacted on the legislative fronts and legal principles regulating fixed-term workers have been developed through case laws and academic theories on the front of legal interpretation. In fact, cases where fixed-term workers anticipate continuing to work vary in types and characteristics. Nevertheless, case laws do not clearly distinguish those different cases, but deal with the requirements needed to establish legal principles and the effects of the principles broadly or comprehensively. Meanwhile, efforts are being made to form legal principles on ‘anticipated continuation of work relations,’ such as ‘right to expect renewal of a working contract’ or ‘right to refuse it’ through academic theories, though cases of different characteristics are explained without distinction in these efforts as well. Given the current situation, this thesis tried to categorize cases where fixed-term workers anticipate continuing to work, into a type of denying formation of a fixed-term contract, a type of recognizing the renewed employment term, a type of renewing a contract automatically, a type of anticipating renewal of a contract, and a type of concluding a working contract just in formality. Then it attempted to provide independent legal principles applied to each of those types. By explaining that a legal principle in each type has its own entity and purpose and constitutes a system linked structurally with each other, this paper put together those types under a boundary of ‘legal principle of anticipated continuation of work.’ It appears too early to categorize, conceptualize, systemize, or legislate into laws the legal principles on anticipated continuation of work relations of fixed-term workers, since the legal principles are still in the making. These attempts may be the process to complete the legal principles on anticipated continuation of work relations. Hopefully this thesis will contribute to activating discussion on the subject.