일본의 구직자 지원법 입법과 그 시사

최석환(Choi, Sukhwan) 한국비교노동법학회 2013 노동법논총 Vol.27 No.-

A new act for supporting job seekers(kyushokusha-sienho) was legislated in Japan recently. It is aiming at supporting persons who are under unemployment and at the same time taking vocational training trying to get a new job. Global economic crisis enlarged the size of unemployment and this should be considered in a different way because of its structural features. In Japan, there had been a few temporary measures to cope with mass unemployment, which included giving money for persons under the vocational training. The Act was legislated with the continuous needs for supporting persons under the unemployment afterwards. Basically the Act holds two aspects in the point of view of what it aims. Does the Act pursue employment stability or income security? This is closely connected with another question of priority, that is getting a new job through training or securing minimal income with the condition of participating in training. In Japan, thee answer is more or less close to the former. Also it takes different characters at the same time. First, it can be thought as an extension of employment insurance. Second it also is another way of public assistance. This a little ambiguous complex makes financial systems of the Act very difficult, mainly who will be in charge of the business, finances of employment insurance or general account of the state. There actually has been a huge gap between employment insurance and public assistance until now. Act for supporting job seekers helps persons who are not under coverage of employment insurance, but still have the will of training for getting a new job, trying to escape the stigma of public assistance. It gives a certain amount of money in cash to the persons who are participating in a vocational training sincerely. It has some positive effects, helping persons to get a new jobs, avoiding the traps of welfare - moral hazard. But still has many problems as well, above all things the difficulties in the relations with other systems of social security. Now we are under similar situation of mass unemployment, and experiences in Japan can be one model of law system for these problems, certainly is suggesting an inspiration for our systems.

비정규직에 대한 근로조건의 불합리한 격차금지

최석환(Sukhwan Choi) 한국비교노동법학회 2018 노동법논총 Vol.43 No.-

We have anti discrimination regulations about atypical workers compared with regular workers in Korea. With this, recent cases by regional courts showed that the position of atypical workers could be regarded as a social status which should not be the reason to discriminate employees. In Japan, prohibition of the unreasonable differences in the working conditions is a principle of narrowing the gaps between regular workers and atypical workers. When it comes to the standards about unreasonable differences, job content, the scope within which the job content and assigned position can be changed, and any other factors should be considered. This approach was recently more concretely reflected to the new legislation of so called “various working style” law. Supreme court of Japan also showed two new cases about making standards of unreasonable differences in working conditions, which emphasized that every single working condition should be compared and examined respectively. Compared with Korean system, Japanese has more flexible way in that atypical workers in Japan do not have to find precise comparable regular employee to prove their disadvantage. But it also has difficulty in that it contains too much discretion about judging what the unreasonable differences are.

고용보험의 재원 부담방식

최석환(Sukhwan Choi),홍성방(Seong-Bang Hong) 한국비교노동법학회 2014 노동법논총 Vol.30 No.-

Social security law essentially requires financial sources. There are various ways of setting up social security law systems from financial point of view. Main sources of these systems are divided into two ways, taxation and insurance. Recently, we became to experience recessions more often, and roles of employment insurance are more important than ever. With this, the financial basis of employment insurance law needs to be considered more clearly, especially whether it is linked with the various purposes of policies that employment insurance law seeks. This article aims at clarifying the financial structure of employment insurance law. For this purpose, Japanese employment insurance law(koyo-hoken-ho) was analyzed. Japanese employment insurance law is also facing changes from the financial point of view, with depressions of economy. The history of Japanese employment insurance shows how they shared the financial basis of employment insurance, which designed diverse models of sharing cost. Also it has flexible clause which makes it possible for the Ministry of Health, Labor and Welfare(MHLW, kousei-roudo-sho) to determine the premium rate. This is for the efficiency of managing the insurance business. In Japan, there are opinions of expanding part of national coffer, which recognize policies of employment as a matter of national level. At the same time some insist that insurance premium should be expanded by the principle of burden on a beneficiary. These opinions are considered as important factors at the time of changes of law. The way Japanese employment insurance system operates with the financial basis could be a meaningful inspiration to Korean system too.

근로기준법상 근로자 동의의 기능과 한계 — 규제 완화의 요건 혹은 해석의 기준 —

최석환(Sukhwan Choi) 한국비교노동법학회 2020 노동법논총 Vol.48 No.-

We have the requirement of employee’s consent at various areas of Labor standars Act (LSA). LSA prescribes that terms and conditions of employment shall be freely established on the basis of equality, as agreed between workers and their employer. At the same time, it suggests minimum standards for the employees, which consequently limits free intention of contract parties. Manadatory rules that restrict freedom of contract in labor relations are grounded by some reasons : (economic) inequality between employer and employee; protection of social value such as health and safety; unintentional influence to other employees such as race to the bottom. LSA sometimes suggests exception from mandatory rules via employee’s consent, through regulation itself and case law. We need to confirm the objects that can be exempted, and then also need to analyze the difference between individual and collective agreement. The function of individual employee’s consent is restricted, because before the consent of the employee, you need to confirm the area which this derogation is permitted according to the main purpose of the clause. And after that, the free choice of derogation should not disturb other employees’ rights, nor influence them in the course of making decisions about derogation at the same time. We have to be prudent in permitting derogaton by individual employee’s consent, when there are no additional requirements or collective procedure.

징계로서의 전직과 정당성 판단구조

최석환(Sukhwan Choi) 한국비교노동법학회 2022 노동법논총 Vol.54 No.-

전직은 사용자에 명령에 의한 근로자의 근무지와 직무 내용에 대한 변화를 의미한다. 근로기준법 제23조 제1항에서는 전직에 정당한 이유를 요구하지만, 실제 법원의 판결은 업무상 필요성과 근로자의 불이익, 그리고 절차적 협의 여부로 구성되는 권리남용 판단을 기본적 법리로 하여 전직의 정당성을 판단해 왔다. 그간 전직에 관한 논의의 중심은 조문의 규정과 법원의 판단 구조 사이에서 발생하는 해석상의 괴리 및 이에 대한 비판이 주된 내용을 이루어 왔다. 하지만 최근 제시된 일련의 판결은 전직의 법적 성격이 징계에 해당하는 경우를 명확히 구분하고, 이에 대해 전통적인 징계의 정당성 판단 기준을 적용하고자 하는 태도를 제시하여 주목된다. 또한 전직 전반에 걸쳐 정당성 판단을 위해 근로기준법 제23조 제1항의 정당한 이유라는 문언과 정합적 해석을 모색하는 시도도 발견된다. 이 논문에서는 근로기준법 제23조 제1항의 규정을 해석하는 판결의 변화를 분석하고 징계로서의 전직과 인사명령으로서의 전직을 구분하여 판단하는 법원의 태도가 갖는 의미에 대해 검토한다. 또한 전직은 순수한 인사명령, 해고의 회피 등 구조조정, 징계 등으로 구분될 수 있으며 각각의 경우 그 법적 성격이 상이하다면 그에 대응하는 정당성 판단의 바람직한 기준은 무엇인지에 대한 시사 역시 위의 분석을 통해 얻고자 하였다. Employee transfer is a change in the workplace and job of an employee, usually ordered by the employer.Article 23 of the Labor Standards Act requires justifiable reasons for employee transfer, but the supreme court"s ruling has applied the legitimacy of transfer based on the judgment of abuse of rights to transfer, consisting of necessity by the management, employee"s disadvantage, and procedure. Balancing between necessity for transfer and disadvantage by transfer has been a crucial standard to tell whether a transfer is valid or not. Until now, the main stage of the discussion on employee transfer has been the gap between the provisions of the LSA and the court"s judgment frame, and criticis over this gap. However, recent cases show that there are attempts to clearly distinguish the characteristics of employee transfer. Court tries to make clear distinction between transfer as a disciplinary measure and transfer as a human resource management. Then, court shows the principle to apply traditional standards for judging the legitimacy of the disciplinary measure to categorized employee transfer, which is noteworthy. In this paper, we analyze the changes in the judgment interpreting the provisions of Article 23 of the Labor Standards Act and examine the court"s stance to distinguish between a transfer as a disciplinary measure and as a kind of human resource management. Employee transfer can be classified into various type, like restructuring of human resource, disciplinary measure. In each case, the standards for justifiable transfer can be sought through the analysis above.

관리직 근로자의 노동법적 규제

최석환(Choi Sukhwan) 한국노동법학회 2012 노동법학 Vol.0 No.41

Executive staff hold there unique positions in the fields of employment/labor law. They are different from typical employees, in that they have more powers of work directions and orders to the other employees. At the same time, they usually work in the central part of enterprises which means they are likely to be essential part of the enterprises, and are basically more favorable to employer with stronger bargaining powers. However, recent changes of labor market suggests need to reconsider regulation systems about this group of employees. They came to request protections of labor/employment law. But still there are many hurdles which say that including executive staff into other employees and treating them as one group is not a appropriate solution. In Germany, executive staff(Leitende Angestellte) experienced many historical changes, sometimes exmpted from protection of employment law (such as unfair dismissal or long working time), gradually gained more protection as ecoonomical climate got chilly. Recently they have their own organization(Sprecherausschuss), and are communicating with employer through this body, representing their own intersets. In States, contrary to the independent system of German executive staff, each legislation has its own aim, and consequently sets its own range of exemption. Supervisors and managers in NLRA originates from the concept of two masters, strictly prohibits unions from dealing with employers. White collar exemption system in FLSA deals mainly with relations between remuneration and working hours, and the employees concerned here do not need protections of FLSA, because of their discretion and appropriate reward. There can be some inspirations that Japanese labor /employment system can get from these foreign systems. First, we can consider many reasons of different regulations about executive staff. Lower need of protection can be a reason, but there can be more reasons, like need to differentiate this group from typical employees, or need to identify executive staff as a group through the whole fields of labor/employment law. Various reasons can be considered and made real for modernization and rebuilding regulating systems. Second, we can choose various ways of regulating executive staff from the point view of employment law, not only the set of exemption and strict requirements, but also wider range of targeting group and a certain way of representing their own interest, including independent organization consists of executive staff.

HEV/PHEV 능동변속제어 기능의 연비 향상 요인 분석

이대흥(Daeheung Lee),방재성(Jaesung Bang),홍대기(Daeki Hong),최석환(Sukhwan Choi),박상준(Sangjoon Park) 한국자동차공학회 2019 한국자동차공학회 부문종합 학술대회 Vol.2019 No.5