의사표시에 기한 계약관계의 종료에 관한 고찰 - 근로계약에서 사전약정, 합의해지, 기간의 정함을 중심으로 -

Abstract

The purpose of this article is to examine the conclusion of contract relations under the Civil Act and labor law by looking at the conclusion thereof based on declaration of intention. In order to compare to the two, review will be made by focusing on employment contract under the Civil Act and labor contract similar thereto. As the relevant conclusion of labor contract relations, this article looked at the conclusion by automatic retirement provisions, i.e., at the prior agreement,termination by agreement and term limit. Where such conclusion of contract relations by declaration of intention is made based on the declaration of intention by either party or both parties, the labor contract relations are understood to end in the area of private autonomy. Such intent is thus respected, and there occurs the legal effect of concluding the contract relations based on the intent. Problems occur when some employers attempt to avoid relevant restricting provisions of the labor contract which protect the workers, under the excuse of the principle of private autonomy. Here, the relationship between such limiting provisions and private autonomy will be considered through the conclusion of contract relations by declaration of intention. First of all, making the limit of the conclusion of contract relations clear by initially clarifying the meaning of relevant declaration of intention in the conclusion of contract relations inherent or deemed inherent in such declaration of intention will be the interpretation promoting the purpose of statutory provisions protecting contract parties in terms of private autonomy and from social perspectives. For that, based on the position of the court and majority scholars that void legal transactions can also be cancelled, this article examined the relationship of prior agreement, termination by agreement and term limit with the provisions on declaration of intention, with those restricting dismissal, etc