근로기준법 제15조와 부당해고 구제법리 (부당해고 무효법리의 근거 문제 1)

Abstract

This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause. The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory. The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with. As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined. As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law. I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory. For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause. The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory. The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with. As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined. As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law. I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory. For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause. The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory. The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with. As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined. As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law. I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory. For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.This paper attempts to construct an remedy theory about wrongful discharges, based on contract liability. It aims to propose a new alternative to the invalidity theory of wrongful discharges dominant on the current legal theory and practices, which is based on the invalidity theory of legal acts in violation of the compulsory clause. The legal basis for the composition of the remedy theory about wrongful discharges based on contract liability was presented in the Article 15 of the Labor Standards Act (labour contract in violation of this act), in particular the so-called “supplementary effect” in paragraph 2 of the Article. In addition, I have addressed the issues of supplementary methods, claim effect, and items not covered by labor contracts that may be raised in relation to the legal basis of this remedy theory. The core content of this paper is to specify the contents of the contract liability remedies about wrongful discharges. Basically, the issues of damages and specific performances were dealt with. As for specific performances, the issues of the possibility of these performances and the breach of contract not to do something were raised. In particular, I insisted that a confirmation lawsuit for the invalidity of wrongful dismissals should be identified as a method of specific performances. To this end, the issue of the Article 389 of the Civil Code was examined. As for damages, in particular, the issue of future damages was raised. In this regard, I introduced the front pay issues of the US common law. For the purpose of comparison, I also introduced the conception of duty to mitigate of the US common law. I also examined the implications of this remedy theory about wrongful discharges, based on contract liability in our employment reality and legal theory and practice. In our employment practices, I argued that future damages could replace the reinstatement based on the discharge invalidity theory. Theoretically and practically, I argued that this remedy theory would be useful for the problems of responsibility requirements, extinction aging, invalidity submission and comprehensive remedy theory. For future research, I presented the correlation problems of the wrongful discharge invalidity theory based on the invalidity theory of legal acts in violation of the compulsory clause and the wrongful discharge remedy theory based on the contract liability. I implied the necessity of the total reconstruction of the wrongful discharge law, paying attention to the invalidity theory of legal acts in violation of the social order based on the Article 103 of the Civil Code.