회사분할과 근로관계의 승계

Abstract

In the case of a company division that divides all or part of the business, it should be considered that the contents of the business include a labor contract under the Labor Law. As a legal effect of the division of the company, the succession problem of labor relations can be solved by the comprehensive succession law based on the principle of succession as in business transfer. This is because, from the point of view of a company's organizational change, business transfer and company division must have the same legal properties. However, it should not be overlooked that there are certain differences depending on the type of company division. In other words, in the case of an extinction division, in which the dividing company extinguishes and two or more new companies are newly established through division, it will be possible to apply the comprehensive succession law by giving a legal effect similar to the merger as in the whole transfer of business. However, there will be a difference in that in the case of a subsidiary division, the problem of choosing which subsidiary company will succeed to the successor remains. On the other hand, in the case of a surviving division in which two or more new companies are newly established by division while the subsidiary company survives, the succession to a new division is rejected, such as when a part of the business is transferred, the person subject to succession rejects employment succession to the transferee The company will be able to exercise the right to refuse succession remaining in the company. Absolutely, the right to choose a company in the case of an extinct division or the right to refuse succession in the case of a continuing division cannot be recognized in an unlimited way. This is because the freedom of employment choices for workers can be guaranteed if the workers' right to choose a company or refuse to succeed can be guaranteed, but the company cannot achieve the purpose it seeks through division of the company. In addition, if a worker's right to choose a company or refuse to succeed is not exercised in accordance with the purpose of the company, the issue may be raised that the worker remains an idle manpower in any company and may be subject to further dismissal for management.