취업규칙 불이익변경 법리에 나타난 ‘사회통념상 합리성’ 개념의 형법적 의의와 기능

Abstract

In the labor area, the Supreme Court makes a deal with whether the employer is punished by the socially accepted idea. But it is far from certain what the idea means in relation to the systematic status in criminal law. For example, if the rules of employment are changed badly on employee, the employer needs to have the consent of the labor union by the Art. 94 of the Labor Standards Act. And if the employer is in the breach, the employer will be sentenced to maximum of 5 million won in fines according to penalty clause 114. In this case, the basic elements of penalty clause is ‘consent’ of labor union. But the Supreme Court states that, “the employer who did no consent is not punished according to the socially accepted idea”. That means the judge makes an arbitrary decision by using the generally-accepted idea in the society. In other words, the judge uses the idea in favor of the employer. In this case, the purpose of the Labor Standards Act can never be achieved. Because the judge is on the employer’s side diplomatically using the abstract concept like socially accepted idea. If so, the concept must serve as excluding the illegality, not interpretation criterion of elements for judge. And furthermore, even though the concept has a passive function, the interpretation criterion must be seen as regularly. This must be kept for the principle of ‘nulla poena sine lege’ and the legal stability by applying the equal application of the law.