인사권 행사의 정당성

Abstract

This article contains my opinion about when employer’s exercise of personnel management right should be recognized as valid. Therefore, I summarized the concept and content of the personnel management right and the guarantee of rights to work,and then based on these; I explained my opinion on how to solve the conflicts created between these two rights. First, the personnel management right is the right given to the employer to organize and use the employees under contract for effective management of the business. The legal evidence is the contract. The disadvantageous execution of the employee due to the exercise of personnel management right is also not good for the employees regardless whether it includes punishment or not. Second, based on paragraph 1 and 3 of Article 32 of the Constitution, the right to work is guaranteed through relevant laws such as Labor Standards Law. This means,the employees have rights to request their employer the proper treatment to maintain the dignity of the men during the contract. This also means, the employees have rights to maintain personal properties and position of labor relations position. Third, the right of personal management and the right to work both affect each other through the labor contract and cause conflict. As a method to solve this issue, the ‘legitimate reason’ on paragraph 1 of Article 23 of Labor Standards Law can be applied. When interpreting this regulation, one must consider that the right to work has relatively superior benefit and the personnel management right of employer is only allowed when it has a good reason for exceptionally legitimate. This means, as the exercise of personnel management is limited due to the right to work, most personnel management rights is constrained by right to work unless there is an exceptional case that brought significant effect on the existence of the company.