징계의 시효와 관련된 몇 가지 문제점

Abstract

The labor laws that regulate the individual labor relationships, including the Labor Standards Act and the others of the like, do not have any regulations on the prescription of the disciplinary action. As a result, this gets regulated according to the self-governing standards within the individual place of the business like the employment regulations and the others of the like. And whether or not the regulations related to the prescription of the disciplinary action should be included in the self-governing standards is according to the will of the business owner only. In case there is no separate regulation regarding the prescription of a disciplinary action, there is no choice but to interpret the time period in which the disciplinary action on an illegal action by a worker by the business owner is possible is the equivalent time period during which it is anticipated that the user will no longer engage in the disciplinary action as a matter of the socially accepted idea. However, as such an abstract interpretation makes a worker who is the subject of a disciplinary action stay in an unstable position for a long period of time, it is insufficient in terms of the protection of the worker. Especially, there can be a problem with regard to the fairness with the government officials-related laws, including the National Government Officials Act that has been regulating the prescriptions of the disciplinary actions regarding the government officials. As a result, on the level of the protection of the workers through the predictability and on the level of the legal stability, the matters related to the prescription of the disciplinary action must be amended in the direction that is regulated by the current labor-related laws. Specifically, among the matters that must be included indispensably in the employment regulations that have been regulated in Article 93 of the Labor Standards Act, based on the matters related to the restrictions or the other matters that will be applied to the concerned business or to all the workers at the place of business, we can try thinking of a method that foreshadows the detailed items in the Enforcement Regulations of the Labor Standards Act and that includes the matters related to the prescription of the disciplinary action here. Also, regarding the time period of the prescription of a disciplinary action, it is rational to regulate it within the scope of the prescription of the disciplinary action that has been regulated by the current National Government Officials Act. There is a need to examine the solution measures regarding a few interpretive and realistic problems that are issued in relation to the management of the prescription of a disciplinary action. First, one must be prudent in making an illegal action in the past, regarding which a disciplinary action cannot be taken because the time of the prescription of the disciplinary action has passed, into a material for deciding on the disciplinary action regarding the illegal action that is taking place at present. Second, for the prescription of a disciplinary action to begin, the occurrence of the right to the disciplinary action on the part of the business owner must be premised. As a result, regarding the starting point of the reckoning of the prescription of a disciplinary action, which is generally regulated as the day on which the reason for a disciplinary action and the others of the like have occurred, it is desirable to interpret it as the day on which the business owner knew or could know the fact of the illegal action by the worker. Lastly, in the case of extending the time period of the prescription of a disciplinary action through a revision of the employment regulations to a longer period of time than previously and regarding an illegal act committed by a worker before the amendment of the employment regulations, the application of the regulations on the prescription of the disciplinary action that have been changed is not allowed.