사회질서 위반 법률행위 무효법리의 의의와 부당해고 구제법리

Abstract

This thesis is a part of the work to dismantle the invalidity theory of legal acts in violation of the compulsory provisions, which is the basis of the invalidity theory of unfair dismissals, and to unify the invalidity theories of legal acts into the invalidity theory of legal acts in violation of the social order, and to constitute a new form of invalidity theory of unfair dismissals. In this thesis, from the viewpoint of the legislative context of Articles 103 and 105 of the Civil Code, it is argued that the invalidity theory of legal acts in violation of the compulsory provisions can not be justified on the Article 105 of the Civil Code. On the basis of the unified invalidity theory of legal acts in violation of social order, the contents of the new form of invalidity theory of unfair dismissals were also presented. First, This thesis argues that the Article 105 of the Civil Code, in its legislative context, is not intended to invalidate legal acts that violate compulsory provisions, but to extend the principle of private self-government in relation to the statutory acts, by establishing the general provision on voluntary provisions. The legislative history and purpose of the Article 91 of the Civil Code of Japan, which is the origin of Article 105 of the Civil Code, was excavated from a thesis by Hoshino-Eiichi as the arguments. Second, since the concept of social order in Article 103 of the Civil Code also takes a position of substantialist thoughts in the legislative context, it is argued that it contradicts the invalidity theory of legal acts in violation of compulsory provisions. The consistent substantialist thoughts of the general provisions of the Civil Code and the Article 20 of the Criminal Code, B. K. Kim’s concept of social ordinary norms and the Confucian thoughts of natural law, and the relationship between the concept of social order in Article 103 of the Civil Code and Carl Schmitt's concrete order ideas are presented as arguments. In particular, the institutionalist legal theory of Maurice Oriou, which was the source of concrete order ideas, is reconstructed from the viewpoint of Habermas's theory of communicative acts, and the direction of practical operation of the concept of social order in Article 103 of the Civil Code is also presented. The importance of this perspective on the theory of labor law is also emphasized In conclusion, the contents of the new form of invalidity theory of unfair dismissal based on the invalidity theory of legal acts in violation of social order are also demonstrated. First, it is argued that the invalidity theory of unfair dismissals is comprehensively applied beyond the limits of the dismissal restriction provisions in the labor acts. In particular, the application of the invalidity theory of unfair dismissals is argued even for workers at small workplaces and domestic workers who are outside the scope of application of the Article 23, Paragraph 1 of the Labor Standards Act. Second, the separation of the invalidity theory of unfair dismissals under the Civil Code and the remedy theory of unfair dismissals under the Labor Standard Act is argued. On this basis, the adjustment and integration of the congested unfair dismissal remedies is suggested. Third, it is argued that the criterion for judging the unfairness of the invalidity theory of unfair dismissals is not ‘just cause’ in the Labor Standard Act, but violation of ‘social order’ in the Civil Code. Based on this research, it is suggested that there is a need to solve the problems of labor law, such as the theory of limitations on the autonomy of collective agreements and the theory of discretionary statutory provisions in relation to collective agreements.