연차휴가 선사용의 문제점과 입법적 개선방안

Abstract

Pre-use of annual leave means that employees who have used all of the annual leave granted in that year need additional leave in advance of the annual leave scheduled for the following year. Pre-use of annual leave, although not stipulated by law, has recently made it possible for some companies to pre-use their annual leave on the grounds that it helps them use it smoothly. Pre-use of annual leave is conducted through the employee's claim and the employer's approval. In the event that the employee retires before the next year's annual leave occurs, the employee agrees that the amount corresponding to the pre-used annual leave should be deducted from wages or severance pay. Deduction from wages or severance pay for the pre-use of annual leave is against the principle of full wage payment and will require genuine consent from employees. The legal nature of deductions deducted from wages or severance pay for the number of days of the pre-use of annual leave is considered to be a return for unjust enrichment, since wages are paid even if they are absent because there is no annual leave to replace next year. In addition, the average wage for calculating severance pay shall be calculated by deducting wages paid for the number of days of the pre-use of annual leave within three months prior to retirement. Although the pre-use of annual leave is for employee's convenience, next year's annual leave is not guaranteed as the pre-use of annual leave in advance of next year. Pre-use of annual leave is not guaranteed by the free will of employees and is feared to abuse the authority of the employers. Considering this and other factors, the pre-use of annual leave is considered to be in violation of the Labor Standards Act's annual leave system. It is desirable to improve the current Labor Standards Act's annual leave system instead of using illegal pre-use of annual leave.