연구논문 : 사실상 공무원의 퇴직급여청구권 - 대법원 1995. 9. 29. 선고 95누7529 판결 -

도재형 ( Jae Hyung Doh ) 경상대학교 법학연구소 2007 法學硏究 Vol.15 No.1

노사관계법ㆍ제도 선진화방안에 대한 비판적 검토

도재형(Do Jae Hyung) 한국노동법학회 2006 노동법학 Vol.0 No.22

Government announced labor-management Relationships Road Map in September, 2003. The Road Map has been a hot issue of South Korea since then, because it included most issues on labor-management relationships" legal system today. I reviewed issues of the Road Map from a legal point of view. I divided them three groups. First group includes issues which do not need to be legislated, Second group includes issues which may not be legislated in haste, and Third group includes issues which have to be discussed seriously. Plural unionism, employer"s wage payment for full-time union officials, union of unemployed workers and others belong to the third group. I said that we have to consider over all matters of the third group. And I stated my opinions on issues of the third groups. Especially, I considered today"s case law and the reality of labor-management relationships. In conclusion, I proposed some ideas to reform the labor-management relations" legal system. They are as follows. First, plural unions may be established in a work place to protect irregular workers and office workers. Second, the mediation system of the National Labor Relations Commission should be reform to help autonomic settlement of labor disputes. Third, the government"s intervention to collective bargaining be controled.

국민건강보험법상 공동 사용자의 보험료 납입 의무

도재형(Do Jae-Hyung) 한국노동법학회 2008 노동법학 Vol.0 No.27

In accordance with the National Health Insurance Act, an employer of a workplace is required to pay not only insurance premiums for his employees in the workplace but also premiums charged to him. However, when more than one employer jointly operating the workplace, it is unclear whether each co-employer is responsible only for the payment of his insurance premiums or whether the co-employers assume joint responsibility. With regard to this issue, the National Health Insurance Act has no relevant provision defining this matter. Regarding this issue, the Court ruled in Supreme Court Decision 2006Du8419 Delivered on May 9, 2008 the following; under Clause 1 of Article 68 in the Act, the insured covered by a workplace whose premiums are obligated to be paid by the employer refers to the employer himself as well as his workers who are employed and their premiums are deducted from their salaries in the employment-based relationship. If other co-employers of the concerned workplace are not in such a relationship, despite being insured by the workplace, they do not fall under this category. Furthermore, the individual insurance obligation of co-employers is not a indivisible obligation shared between the employers. The aforementioned decision is meaningful in that it has provided criteria, to some extent, for interpreting the obligation of insurance payments by joint employers pursuant to the Act.

구조조정의 상시화와 고용 법리의 변화

도재형(Do Jae-Hyung) 한국노동법학회 2008 노동법학 Vol.0 No.26

Korean companies have carried out the labor market flexibilisation policy, differentiating the core-periphery labor since the 1990s with its earlier version focusing on the periphery labor. The court, in line with the idea, excluded atypical workers from the Employment Protection Legislation(EPL). Those accessing the law could freely dismiss atypical workers by refusing to renew an employment contract. The 1997 economic crisis served as a turning point to apply the flexibilisation policy to even to the core labor. In addition, since 2001, Korea has been subject to a continuous restructuring scheme, that is, companies continue to dismiss workers. It is also linked to the adjustment of employment. As such, employers have become exposed to continuous threats. The court supported the labor market flexibilisation policy during the period shown. As a result of the labor market flexibilisation policy, about 55 percent of total employees are atypical workers excluded de facto from the EPL. Nevertheless, as a result of the restructuring in the aftermath of the economic crisis, the Korean economy is continuously enjoying its stable growth. Such a socio-economic situation led the court to be interested in the detrimental circumstances of the periphery labor. As a consequence, recent court rulings attempt to include the peripheral labor into the protection target list in the Labor Law. And yet, it is not a full-scale change of attitudes by the court but a mere action to alleviate side effects resulting from the labor market flexibilisation policy.

노동위원회와 법원, 그 갈등과 조절

도재형(Do Jae Hyung) 한국노동법학회 2009 노동법학 Vol.0 No.29

Since the Labor Standard Act in 1989 established the system of adjudication in Labor Relations Commission for unfair dismissal, Labor Relations Commission has been playing an important role in resolving conflicts of individual employment relations. With the help of Labor Relations Commission, workers resolve conflicts related to them with less payment. In 2007, Labor Relations Commission resolved peacefully more than 90% disputes among total disputes raised. However, some of the decisions made by Labor Relations Commission are rejected in the judicial procedure. The rate of decisions rejected in judicial procedure is not inconsiderable. These circumstances are used as the basis for the argument of Labor Relations Commission's ineffectiveness. Considering essential roles of Labor Relation Commission, however, the above argument is underestimating proper functions of it. Nevertheless, it cannot be denied that Labor Relations Commission is not complete in its system and has to be improved in terms of its performance. This improvement is also vital for reducing the rate of decisions rejected in judicial procedure. Measures I come up with for improvement are as follows. First, Labor Relations Commission needs to secure independence for its organizing, personnel management and budget. Second, Labor Relations Commission should clarify more actively the reasons of its judgment of each case. Third, members of Labor Relations Commission need to enhance their legal knowledge and understanding of the labor law.

파업과 업무방해죄

도재형(Do Jae-Hyung) 한국노동법학회 2010 노동법학 Vol.0 No.34

Though the Constitution states that workers shall have the right of collective action, workers have not exercised their fundamental right in fact. This contradictory situation has been caused by the case law. Since 1990, the Supreme Court has applied the section 314 of the Criminal Act( obstruction of business) and the conspiracy legal theory to employees who just collectively refuse to work, for the purpose controlling union activities. Since then, Employers and government have controlled workers' collective action according to the case law. Another control method for industrial relations was established in 2001. The Supreme Court judged that any strike against employer's decision on restructuring was not legal. With this, trade unions has not been able to strike opposing employer's decision on restructuring. Since then, the bargaining power of trade unions in restructuring process has weakened rapidly. The above court decisions are against the Constitution. Thus, the case law should be reversed. Furthermore, in the terms of above, it is advisable to delete the terms of "threat of force" in the section 314 of the Criminal Act or to make it appear that this provision not be applied to non-violent collective action or strike.

직장폐쇄의 형사적 쟁점

도재형(Do Jae-Hyung) 한국노동법학회 2010 노동법학 Vol.0 No.35

According to the Trade Union and Labor Relations Adjustment Act and case law, an employer may execute a lock-out of the workplace only after its trade union commences industrial action, to prevent imminent and irreparable financial harm to the company. If a legal lock-out is done, the striking workers are in danger of criminal punishment. On the other hand, if a lock-out is illegal, the employer can be punished. But looking at previous criminal cases on lock-out, workers have greater risk of criminal penalties than employers. These situations is not proper in view of equality. In order to prevent abuse of a right of lock-out, penal provisions should be actively applied to illegal lock-out.

임금 체계 개편의 법적 쟁점과 과제

도재형(Do, Jae-Hyung) 한국노동법학회 2014 노동법학 Vol.0 No.51

This paper aims to examine the legal issues related to the reform of the wage system. Wage has various characteristics: 1) Wage is the main source of income for workers. 2) Wage is connected to working hours. 3) Wage has strong influence on the employment of workers. Despite such various characteristics of wage, however, the recent discussion on the reform of the wage system has primarily focused on the working hour system. This paper examines the reform of the wage system from the point of view of income, working hours, and employment, and suggests the future direction of the discussion related to the reform of the wage system.

노동판례의 최근 경향 및 노동법원 논의에서의 시사점 ― 중노위 패소 사례에 대한 분석에 기초하여 ―

도재형(Do Jae Hyung) 한국노동법학회 2005 노동법학 Vol.0 No.21

쟁의행위에 대한 업무방해죄 적용 법리에 관한 검토

도재형(Do, Jae Hyung) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.3

Section 314 of the Criminal Act(Penal Code) states that a person who interferes with economic or social activities of another by circulating false facts or by the threat of force, shall be punished. Obstruction of business applies in cases where workers collectively refuse to work, and the work which has been done by the participants to the industrial action is being stopped by collective and coercive means(the Criminal Act describes it as "threat of force"). Section 314 of the Criminal Act shall be in line with freedom of association principles so as to ensure that non-violent industrial action may not be penalized under this provision. With this view, it is advisable to delete the terms of "threat of force" in this provision or to make it appear that this provision not be applied to non-violent industrial action.