기업회생절차상 근로관계에 관한 한ㆍ일 비교 및 시사점

Abstract

Especially, what influence it would have on workers of the company that applies for rehabilitation procedure in 「Debtor Rehabilitation and Bankruptcy Act」(DRBA, hereunder), that is, ① succession of work relations, ② efficacy of collective agreements, ③ and termination of work relations First, both in our nation and Japan, it becomes an issue whether the trustees of companies under rehab procedure succeed to the status of the existing managers. In our nation, theories that trustees succeed to the previous managers' status are prevailing while in Japan, theories recognizing succession and those not recognizing it collide. It's considered appropriate that user's position of a company under rehab procedure and the manager's status should be given to rehab trustees as long as they exclusively possess the right to run corporate business and manage/dispose of corporate properties. Second, our nation and Japan define the legal nature of collective agreement as unexecuted bilateral contract, and the laws exclude the trustee's right to cancel collective agreements. Also, in case collective agreements made in normal managerial conditions hinder corporate rehabilitation, academic theories and judicial precedents both recognize the need for altering them against workers' advantages to meet corporate financial situations. Its basis is, allegedly, that in both countries, if users suggest alteration to collective agreements due to changes in corporate situations, representatives of labor union and workers accept it, and the newly-made collective agreement does not violate collective autonomy. Third, on termination of work relations, concerning requirements to lay off due to managerial reasons, there is difference between two nations. Korean Labor Standard Act stipulates(Clause 24) 4 requirements to lay off due to managerial reasons, that is, ① urgent managerial needs, ② efforts to avoid lay-off, ③ setting of reasonable, fair lay-off criteria and selecting those needing to be laid off, ④ and notifying the labor union, and faithful consultation with it 50 days before the lay-off (or with those representative of the majority of workers in case of there being no labor union composed of the majority of workers).