근로계약의 준거법에 관한 연구 – 유럽연합에서의 논의를 중심으로

Abstract

This article discusses the special provisions concerning the governing law of employment contracts. The test for determining the governing law of the employment contracts is the same as that of the Article 26 of the Private International Law which sets forth the test for determining the governing law of ordinary contracts in that both of which is based on the principle of ‘the closest relationship’. However, the law of the country in which the employee habitually carries out his work in performance of the contract is more appropriate to protect the employee than the law of country where the employee has his habitual residence and, therefore, Article 28 of the Private International Law provides the special provisions. It is necessary to interpret the meaning of ‘the country in which the employee habitually carries out his work’ broadly to apply the special provisions as broad as possible in consideration of the purpose of them. I am of the opinion that the ‘base rule’ which was derived by the European Court of Justice by way of interpretation of the Rome Convention and was codified in Rome Regulation I can be adopted in interpreting the Private International Law and ultimately needs to be codified in the Private International Law. On the other hand, related to the governing law agreement, the International Private Law protects employee through splitting governing law and, as a result, this causes a difficult problem to compare the governing laws. Many opinions are advanced with regard to the problem in European Union, so we need to keep paying attention to these opinions. Article 28 of the Private International Law has various issues despite its two subparagraph. I hope these issues will be solved clearly by way of amendment of the Law rather than mere interpretation of the Law.