근로의 권리와 해고 및 기간제근로 제한의 헌법적 근거

Abstract

Since the economic crisis in 1997, the flexibility of employment has been increasing over the stability of employment. Under such circumstances, business communities have insisted that restrictions on dismissal of regular workers and regulations of fixed-term work and temporary work agency be relaxed so that labor market can function efficiently, which triggers virtuous circle of economy ultimately resulting in economic growth, on the other hand, labor communities have insisted that regulations on dismissal and fixed-term work be strengthened while refuting the logics of business communities. In the midst of the two contradicting arguments standing against each other, it has significant meanings to study the constitutional standard and principle and their implications from the constitutional point of view that may shed light on this discussion. Provided that the Constitution is the supreme norm, discussions and policies on regulations of dismissal and fixed-term work should be made within the scope of effects of rule of law explained by such reviews. This study focuses on drawing the state's obligations to regulate dismissal and fixed-term work form the right to work guaranteed under the Constitution Article 32. First, it will demonstrate that restrictions on dismissal are based on duty to protect emanating from the right to work guaranteed under the Constitution Article 32. Second, it will prove that matters on fixing the period of employment contract constitute essential parts of employment terms and conditions same as matters on dismissal, therefore, they shall be regulated by the state according to the duty to protect coming from the right to work. Last but not least, it will discuss that regulations of fixing the period of employment contract under the current fixed-term work law are highly likely to be in violative of the duty to protect drawn from the right to work.