전임자급여지급(專任者給與支給)에 관한 법률적 고찰

조흠학 ( Hm Hak Cho ) 단국대학교 법학연구소 2005 법학논총 Vol.29 No.-

산업재해 보고 위반 처벌제도 도입에 관한 소고

조흠학(Hm-hak, Cho) 한국비교노동법학회 2016 노동법논총 Vol.37 No.-

Safety and health of workers is the most important factor in work conditions. But conditions of health and safety in work place in Korea is not good enough comparing with other OECD nations. Still, the rate of the dead per 10,000 workers is 0.41‱, which is double comparing to Japan and German. The Occupational Safety and Health Act(OSHA) Section 10(2) provides that a business owner should report industrial accident occurred etc. to the Labor Minister according to the its Executive Order. The OSHA Section 72(1), furthermore, provides that a business owner who did not report the accident etc. prescribed in the OSHA Section 10(2) above, or who did report falsely should be punished by a fine not exceeding ten million won. The fine is not a criminal penality but only a administrative sanction. An employer, however, generally intend to conceal industrial accidents. There are some reasons in concealment of industrial accidents. For example, increase of insurance due, a possibility of restriction on participation in a bid concerned etc. will be reasons of the concealment. An introduce or establishment of a criminal penality clause in OSHA could be one of helpful means to reduce the concealment of industrial accidents.

산업안전보건법에서 나타난 도급에 관한 쟁점

조흠학(Hm-hak, Cho) 한국비교노동법학회 2017 노동법논총 Vol.40 No.-

From the viewpoint of contract relationship and occupational safety and health acts relationship, it is very difficult to define the limit of the scope of responsibility according to legal concept and type of contract. Especially from the viewpoint of contract theory of civil law, asking contents of invited contract, which correspond to autonomous meaning of the contract, to bear of responsibility can be controversial. In addition, It is necessary to judge whether it is appropriate to prohibit subcontracts, in a multi-layered structure such as a secondary, tertiary structure, caused by Individual contract. Forcing by limiting the unconditional contents of contract by law can cause continuous conflict with civil law and enforcing the law. However it is an important issue for worker’s life and safety and health to make their responsible for safety and health from workplace of contractor that cause the danger. In this sense, it is reasonable to judge administration area of contractor from meaning of place that gives spatial meaning to the workplace to charge responsibility. And currently, scope of contract responsibility is defined only on the basis of limited space concept, which is the workplace, but if scope of workplace changes due to changes in various industrial environments such as the Fourth Industry, exterior contract also needs to be responsible for safety and health as a general responsibility. Particularly in case of workplace where the harmful substance is handled, a corporate responsibility is required through the prior safety and health management system on provision of information, etc.

유급휴가제도의 이론적 고찰

조흠학 ( Hm Hak Cho ) 단국대학교 법학연구소 2003 법학논총 Vol.27 No.-

사업주책임의 확대에 관한 법정책적 검토 -안전조치에 관한 대법원 판결의 의미-

조흠학 ( Hm Hak Cho ) 한국법정책학회 2014 법과 정책연구 Vol.14 No.3

Recently, accident prevention is becoming social issues and social requirements on responsibilities of accident prevention are increasing because of occurrence of frequent accidents in Korea. Accident prevention and post-accident countermeasure in Sewol ferry accident and many others become more important. Furthermore, it begins to emerge issue who agents of responsibilities on accident prevention are. The Supreme Court(2014. 5. 29. 2014Do3542) is widely recognized for employer liability. Direct contractual relationship between the parties in the past, but was recognized safety measures are responsible for the results of actions. Unlike the existing case law was ruled to be a responsible directly if the course of the contractual relationship. Recognition the employer responsible for the operation and oversight of the affiliated worker supervise work, even if the Occupational Safety and Health Act is violated as omission. As a result the wider the limits of safety measures can be directly responsible for the party``s security measures, but is widely Who is responsible for the future given the responsibility. This is different from the existing case law precedent for Occupational Safety and Health Act violations by protection preventive functions are directly responsible for protection of the criminal law in a limits of indirect responsibility can be widened. There are various source of responsibility for violation case in Occupational Health and Safety Act.

특수형태근로종사자의 개별근로관계 보호에 관한 고찰

조흠학(Hm-hak Cho) 한국비교노동법학회 2008 노동법논총 Vol.14 No.-

The Purpose of this study is to look for not only the actual condition of industrial injury and disease caused by occupational status such as a freight truck driver, a dump truck driver, nurse servicer, a Quick servicer, a proxy driver but also the strategic prevention measures of such injury and disease. Independent Contractors The labor conditions of Independent Contractors were compared with those of regular employees, from the viewpoint of labor laws. As a result, it was found that Independent Contractors are in severer labor conditions than ordinary employees. It is desirable to apply industrial accident compensation insurance or medical checkup system to them so that they may be compensated for accidents that may occur in process of work and their right to live may be secured. But at the same time, the regulations for protecting Independent Contractors and the definition of regular labor should be studied more deeply. The patterns of industrial disasters were analyzed according to work types, and countermeasures were mapped out on the basis of the results of the study. In result, it was judged that industrial disasters may be effectively prevented by three measures. First, industrial accident compensation insurance should be preferentially applied rather than preventive measures. Second, the education of industrial safety should be performed on s Independent Contractors, though it is an administrative problem. Third, medical checkup should be periodically performed on them. Also, the medical institutions to check them should be increased so that they may easily undergo checkup everywhere.

행정법으로의 산업안전보건법에 관한 법률적 의미

조흠학(Hm-hak Cho),이관형(Kwanhyung Yi) 강원대학교 비교법학연구소 2011 江原法學 Vol.34 No.-

Under the Occupational Safety and Health Act (OSH Act) of Korea, there are government-issued regulations required by the employers to follow in order to protect workers’ health and safety at the workplace. If employers violate the regulations, the government imposes criminal and administrative penalties on them. However, the OSH Act is becoming less effective since the criminal penalty is rare and relatively minimal. For the effective implementation of the OSH Act, it is important to strengthen criminal penalties. But another effective way is the Ministry of Employment and Labor, which is in charge of occupational safety management and inspection, to impose administrative sanctions. In addition, it will be also effective to strengthen administrative control of the OSH Act by seeking changes in legal framework and regulations, and clarifying the scope of regulatory coverage. The OSH Act can state the responsibilities and limitations of employers and workers more clearly, define the responsibilities of the government, and stipulate where the responsibilities lie in the cases of violations. From the aspect of public law of a nation, it is important to establish the grounds for more strict administrative measures when it comes to significant issues such as protecting the lives and properties of workers in workplaces. Within the scope of the authority to conduct labor inspection, establishing the grounds for more strict administrative measures and immediate administrative actions will empower the administrative control under the administrative law.

산업안전보건법의 위반과 처벌제도

조흠학(Cho, Hm-Hak) 동아대학교 법학연구소 2015 東亞法學 Vol.- No.69

The most important problem is whether the employer has responsibility about a Safety measures of The Occupational Safety and Health Act violations. In general, it is important that the criminal law is the responsibility directly of violation. Therefore Criminal law has willful or negligent crime is important. But It is hard because there are difficult to apply an crime of omission at A Occupational Health and Safety Act violations. However, a recent The Supreme Court(Supreme Court Decision 2014 Do 3542 Decided May 29, 2014) is widely recognized for employer liability. Direct contractual relationship between the parties in the past, but was recognized safety measures are responsible for the results of actions. As a result the wider the limits of safety measures can be directly responsible for the party"s security measures, but is widely Who is responsible for the future given the responsibility.

산업안전보건에 있어서 양질의 일자리

조흠학(Cho, Hm-hak) 동아대학교 법학연구소 2016 東亞法學 Vol.- No.73

독일 등 선진외국에서는 과거에는 ‘노동의 인간화’, 최근에는 ‘노동생활의 질 향상’ 및 ‘양질의 일자리’ 프로그램을 추진하여 노동의 질을 개선하기 위한 노력을 해오고 있다. 인간이 수행하는 노동에 더 인간적으로 다가서자는 활동으로서 1970년대 이후 논의되었고, 1960년 북유럽 국가인 노르웨이나 스웨덴에서 컨베이어 벨트 방식의 폐지의 성과가 세계적으로 주목받으면서 인간다운 노동의 의미가 알려지게 되었다. 또한 1970년대 초반 북미 지역에서 노동생활의 질적 개선 운동인 QWL(Qualtity of Working Life) 운동이 활발하고, ILO에서도 2004년도부터 양질의 노동(Decent Work)이라는 주제로 근로자보호의 새로운 국제적인 표준으로서 “작업조건 및 노동환경 개선 계획”이 추진되기 시작하면서 양질의 일자리 개념이 확산 되었다. 이런 의미에서 우리나라의 산업구조 속에서 양질의 일자리를 찾아본 결과, 직무 특성에 기반한 일자리의 질적 수준은 크게 6가지 내용으로 구성되는 것으로 나타났다. 업무의 제반 내용에 대한 선택권, 업무 수행과 관련된 창의성, 그리고 업무 수행을 통해 자신의 경력과 능력이 발전될 수 있는 전망, 직무의 안정성, 업무 수행중 받게 되는 지원과 의사결정 등에 대한 참여, 자신의 업무능력을 향상시킬 수 있는 기술 훈련 기회, 등을 가지고 있는 일자리가 양질의 일자리라고 나타나고 있다. 그러므로 양질의 일자리는 업무 수행과 관련하여 선택권이 높고, 창의성이 높으며, 업무와 관련하여 발전성이 있고, 직무가 안정적이고 업무 수행과 관련하여 상사의 지원을 받을 수 있으며, 적절한 기술과 훈련을 받을 수 있다면 양질의 일자리로 볼 수 있다. The main aim of this study is to provide an overview of the humanisation of work. Decent Work has been designated by Humanisation of Work. The aim of this principle of humanisation of work is required to improve the physical, psychological and social conditions of working life. To identify the safety and health protection measures for Worker through the program in relation to Humanisation of Work and Decent Work in Germany and EU. The most effective and durable means of creating a healthy and safe working environment is to eliminate hazards and risk during the design or redesign or work, structures, plant and substances. This is described as Decent work under the EU Strategy Action in the Healthy and Safe to Work. Thus ‘Decent work’ is health and safe work where the hazards and risks created by the work are eliminated or minimised so far as is reasonably practical and where the work design optimises human performance, productivity and job satisfaction.

산업안전보건법의 유해·위험물질에 관한 근로자의 안전보건관리방안에 관한 연구

조흠학(Cho, Hm-Hak) 한국비교노동법학회 2013 노동법논총 Vol.27 No.-