근로관계 승계의 법리에 따르는 몇 가지 문제점

Abstract

The main reason why corporate restructuring like the transfer of businesses, merging of companies, and corporate divisionshould be discussed in the area of labor contractsis because the employer as a party to the labor contract has changed.If the status of a worker as a party in a labor contract is not succeeded to an employer after corporate restructuring, the employee's right to live may be seriously violated. For this reason, issues related to labor law which are related to corporate restructuring have been focused on whether or not the status of workers should be succeeded in the corporate restructuring process, and current judgments and most theories recognize a comprehensive succession. There are, however, additional issues to be considered in relation to the succession of the relationship of employment. It may be necessary to restrict the unconditional succession of labor relations in the process of corporate restructuring. This is mostly related to the individual situation of the worker and his intention. Specifically, it can be considered that in the restructuring process, the worker can reject the succession of the relationship of employment and remain in the original workplace. Next, when a corporate restructuring is conducted while an employee who has been dismissed after corporate restructuring is disputing the effect of the dismissal, the issue of how to deal with the status of an employee who has been judged improperly by the labor committee or court should be examined. At present, only a handful of literature is found on research results related to these issues. In addition, each view is not unified, and most views are based on the aspects of assuring the business activities of the employers and guaranteeing the right to live. For this reason, this study examines these two issues on the premise that the employment relationship is succeeded in principle during the corporate restructuring process. Specifically, I have presented a reasonable alternative in terms of harmoniously compromising the two values ​​of the enterprise's operational necessity and the protection of the workers in relation to each issue. First, as to whether workers can exercise their right to refuse in the process of succession, it is reasonable to have a time limit which considers the necessity of corporate restructuring from the standpoint of the employers. Also, a strict interpretation of 'an urgent managerial necessity’ should be among the requirements of dismissal for managerial reasons which should protect the workers who are left in the existing place in the case of a right to refuse event. It is unreasonable to fully acknowledge this in relation to the succession of the labor relationship of “a dismissed person who has made an application to the Court or the National Labor Relations Commission for remedies for unfair dismissal” so each case should be judged separately based on the type of dismissal, the type of corporate restructuring, and the reasons for the employee's remedies.