징계양정의 적정성 판단기준에 대한 검토

Abstract

‘The appropriateness of disciplinary actions’, one of the requirements for‘discipline with justifiable reasonsi’, means that ‘correlations’ between ‘reasons fordiscipline’ and ‘types of discipline’, namely, 'disagreeable behaviors of employees’and ‘contents of disciplines imposed on the behaviors’ should be reasonable. However, because, in any cases, in current laws, no regulation is stipulated onwhether the relationship between the two is reasonable or not, it has been judgedby the standards presented by case laws so far. But, the reasonableness of disciplinary actions eventually depends individualexperience and common sense of judges, because various criteria for judgementpresented by the case laws have been abstract and subjective, and the meaningsand application methods of each specific factors for judgement have not been clear. Consequently, each court of competent jurisdiction may make different judgementson similar cases, and even the lower courts’ and superior courts' judgments insame cases can be contradictory. This does not allow parties to labor disputes tohave the predictability of any cases they are involved in and results in issues ofdefects of the legal stability. Based on such a critical mind, this study analyzes the contents of the case lawsto date on the criteria for reasonableness of disciplinary action, and reviews theirvalidity. In precedents so far, a variety of criteria have been prepared and appliedregarding reasonableness of disciplinary action, and different criteria seem to havebeen applied respectively to each case. Although this criterion of diversificationcan be seen as a result of taking into account the diversity of the companies'operations, systemed and formulaic criteria and application methods must be established, given the general norms of the Labor Standards Act, which requiresthe legitimacy of the discipline. In addition, in order to clarify criteria for reasonableness of disciplinary actionsin the absence of stipulated regulations from current laws, (i) measures to definegeneral criteria for reasonableness of disciplinary actions on 「Labor Standards ActEnforcement Rules」, (ii) measures to include criteria for reasonableness ofdisciplinary action in the essential matters to be written of Rules of Employment,(iii) Ways to substantially operate ‘employment rules review system’ which has beenotherwise implemented so far, and (iv) methods, in which Courts or LaborRelations Commission indirectly presents adequate types of disciplines on'disagreeable behaviors of employees’ through the sentences(rulings) regardingcases related to disciplinary actions, need to be introduced.