임금의 본질에 대한 고찰

이선신 ( Seon Sin Lee ) 안암법학회 2011 안암 법학 Vol.0 No.36

There`re several theories on the essencial nature of wage, and those are theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics. Those theories, which came from Japanese labor-law scholars and judicial precedents, have partial legal appropriateness on the one hand, but on the other hand have legal vulnerable points as well. And there are some viewpoints which stands skeptistic about the usefulness of the theories on the essencial nature of wage, regarding new theories - e.g. theory of wish-interpretation, theory of labor- management relations suspension - as useful when judging ``the sphere of wage-deduction during strike``. But I don`t agree with those viewpoints because I think that theories on the essencial nature of wage are useful for the rational and systematic understanding of various legal problems about wage. In this thesis, after reviewing the traditional theories about the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics), I`ve proposed ``a theory of the compensation for the labor-management relation`` as my unique opinion, and that is a viewpoint, through which perceiving the essencial natue of wage as ``the compensation for the continuation of labor-management relation``, I think that ``the theory of the compensation for the labor-management relation`` has many merits in the normative aspects and in the realistic(managerial) aspects too. The merits in the normative aspects are as follows. Firstly, ``the theory of the compensation for the labor-management relation`` can overcome or dissolve the legal problems of the traditional theories on the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics). Secondly, ``the theory of the compensation for the labor-management relation`` is harmonious with the characteristic of continuous contract of labor-contract. Thirdly, ``the theory of the compensation for the labor-management relation`` can include some payments into the sphere of wage, so can expand the sphere of laborer protection - there`re some payments which have not characteristic of ``the price of labor`` or ``the price of labor-force``, considering recent practices of corporate compensation. And, the merits in the realistic(managerial) aspects are as below. Firstly, ``the theory of the compensation for the labor-management relation`` can be compatable with the recent trend of labor-management relation which has tendancy of accentuating the importance of cooperative aspects more than the importance of hostile and combative aspects. Secondly, ``the theory of the compensation for the labor-management relation`` can be coexident with the recent trend of Business-Administration which regards the characteristic of laborer as Human Resources and emphasizes the importance of Knowledge Management. Thirdly, ``the theory of the compensation for the labor-management relation`` can be harmonious with the change and the diversification of the types of the labor supply which have been derived from the rapid development of ICT(Informatiopn & Communication Technology). Besides many merits in the normative aspects and in the realistic (managerial) aspects, ``the theory of the compensation for the labor-management relation`` can give us substantial implications about wage-related legal problems(``the sphere of wage-deduction during strike`` etc.), thus presents us a new paradigm of wage.

협동조합법상 ‘공직선거관여 금지’ 또는 ‘정치관여 금지’ 규정에 대한 검토

이선신 ( Lee Seon-sin ) (사)한국협동조합학회 2020 韓國協同組合硏究 Vol.38 No.3

우리나라의 협동조합법들은 대부분 ‘공직선거관여 금지’ 또는 ‘정치관여 금지’규정을 두고 있다. 그런데 국제협동조합연맹(ICA)이 협동조합기본원칙에서 ‘정치적ㆍ종교적 중립의 원칙’을 폐지한 지 거의 60년이나 지났으며, 이에 따라 외국의 협동조합법에서는 ‘공직선거관여 금지’ 또는 ‘정치관여 금지’규정을 찾아보기 어렵다. 국내의 입법례를 보더라도 노동조합및노동관계조정법에 의해 설립ㆍ운영되는 근로자들(협동조합의 조합원과 마찬가지로 경제적ㆍ사회적 약자들에 해당한다)의 자주적 결사체인 노동조합에 대해 ‘공직선거관여 금지규정’을 폐지한 지 20년도 훨씬 넘었다. 이처럼 국내외 적으로 협동조합 및 노동조합의 ‘공직선거관여 금지’ 또는 ‘정치관여 금지’를 규정한 사례를 찾아보기 어렵다. 따라서 우리나라의 협동조합법 입법태도는 협동조합기본원칙에 부합하지 않고 헌법상 평등권을 침해하는 것으로 위헌성이 크다고 본다. 국회가 협동조합법에서 ‘공직선거관여 금지’ 또는 ‘정치관여 금지’규정을 개선(삭제 또는 완화)하는 것이 타당하다고 본다. Co-operative laws of Korea stipulate that co-operatives should not be involved in public election-campaign or political engagement. However, nearly 60 years have passed since ICA abolished the principle of political-religious neutrality from the co-operatives’ basic principles. Thus, foreign co-operative laws do not have stipulations over prohibition of public election-campaign or political engagement. Meanwhile, in Korea, over 20 years has passed since Labor-law abolished the stipulation over the prohibition of public election-campaign of labor-unions. As such, there are rare cases stipulating over prohibition of public election-campaign or political engagement of co-operatives or labor-unions in Korea and foreign countries as well. So, Korea’s co-operative laws’ strange attitude is not in accordance with the ICA’s co-operative’s basic principles. Moreover, it might be unconstitutional in light of the infringement of equality. In conclusion, it’s reasonable that National Assembly should revise (abolish or alleviate) the stipulations over the prohibition of public election-campaign or political engagement in the co-operative laws of Korea.

농협법상 임원의 ‘비상임’에 대한 검토

이선신 ( Lee Seon Sin ) 한국협동조합학회 2016 韓國協同組合硏究 Vol.34 No.2

농협법은 농협과 농협중앙회의 임원의 ‘비상임’에 관해 규정하고 있다. 이 논문의 목적은 ‘비상임지위’의 법적 의미와 관련 문제들에 대해 검토하고, 바람직한 입법의견을 제시하는 데 있다. 결론적으로 말하자면, 농협과 농협중앙회의 최고경영자(조합장, 중앙회장)의 지위를 ‘상임’으로 하는 것이법리(法理)와 사회적 통념에 적합하다. 그리고 이렇게 하는 것이 책임경영체제를 증진하는 데에도 도움이 될 것이다. 한편, 최근(2016.5.20.)에 정부가 입법예고한 농협법 개정안은 농협과 농협중앙회의 최고경영자(조합장, 중앙회장)의 업무집행권을 실질적으로 박탈하는 내용을 담고 있는데, 이는법리에 위배되므로 시정되어야 한다. The Agricultural Cooperatives Act stipulates the “non-standing status” of the Agricultural Cooperatives’ and the National Agricultural Cooperative Federation’s (NACF’s) officials. This paper reviews the legal meaning and related problems of the nonstanding status and presents legislative opinion. The Agricultural Cooperatives’ and the NACF’s chief executive officer (CEO) status should be stipulated as “standing status” to be compatible with legal principles and conventional wisdom and to improve the liability management system. A revision plan of The Agricultural Co-operatives Act recently (On May 20, 2016) noticed by the government comprises that the right of administration of the CEOs of the Agricultural Co-operatives and the NACF shall be eliminated. However, this plan is inconsistent with legal principles and conventional wisdom; therefore, this plan should be corrected.

교원노조법 제2조의 합헌 판단에 대한 비판적 검토

이선신(Lee, Seon-Sin) 한국노동법학회 2015 노동법학 Vol.0 No.55

근로기준법상 임금정의규정의 합리적 해석방안

이선신(Lee, Seon-Sin) 한국노동법학회 2013 노동법학 Vol.0 No.46

협동조합 선거법규 검토 -「공공단체등 위탁선거에 관한 법률」에 의한 선거운동을 중심으로-

이선신 ( Seon Sin Lee ) 농협대학교 협동조합경영연구소 2014 협동조합경영연구 Vol.41 No.-

This paper aims to present easily understandable review and explanation on the election-related regulations of the cooperatives, especially focusing on the election campaign stipulated in the Act of Election comissioned by the Public Organizations etc. The paper might be helpful for those who are interested in the simultaneous cooperative presidents’election due on March 11, 2015.

농협법·위탁선거법상 중복규정의 문제점 및 해결방안 검토

이선신 ( Lee Seon-sin ) 한국협동조합학회 2018 韓國協同組合硏究 Vol.36 No.2

현행 농협법과 위탁선거법의 선거관련 규정은 상당수 중복되어 있고 내용도 일부 상이하다(수협법 등 다른 개별 조합법과 위탁선거법의 선거관련 규정도 마찬가지이다). 이로 인해 법의 해석·적용에 있어서 많은 혼란과 문제(형평성 문제 등)가 초래될 것으로 우려되므로, 시급히 이를 개선해야 한다. 개선방법으로는 농협법에 규정된 중복규정을 삭제하는 방안이 바람직하다(수협법 등 다른 개별조합법에 규정된 중복규정도 삭제해야 한다). 왜냐하면, 농협 등 개별 조합법에 의한 협동조합 등(공공단체)의 선거에 관한 사항을 통일적으로 규율하기 위하여 별도의 법률로서 위탁선거법을 제정한 것이기 때문이다. 이 경우 비위탁선거에 대해서는 농협법 등 개별 조합법에서 ‘준용규정’을 두어 규율할 수 있을 것이다. 한편, 더욱 바람직한 방법으로서, 위탁선거법 대신에 ‘(가칭)공공단체등 선거에 관한 법률’을 제정하는 방안도 검토할 필요가 있다. 2019년 3월 13일로 예정된 제2차 전국동시조합장선거 이전에 서둘러 입법적 개선방안이 실현되는 것이 바람직하다. A large number of election-related regulations in the Agricultural Cooperative Act and the Election-commission Act are dual stipulated. Because this causes significant confusion and problems in legal interpretation and application, this situation must be corrected as soon as possible. The recommended course of action is to remove the election-related regulations in the Agricultural Cooperative Act. The purpose of the Election-commission Act is to stipulate election-related regulations in a single, unified manner. Therefore, it is desirable to revise the pertinent regulations before the second nationwide election, which is slated for March 13, 2019.

조합원 제명의 요건·절차·효과에 대한 법적 검토

이선신 ( Lee Seon-sin ) 한국협동조합학회 2017 韓國協同組合硏究 Vol.35 No.2

조합원은 사단법인인 협동조합의 구성원으로서 협동조합의 주인이다. 조합원 제명은 조합원의 지위를 박탈하는 조치이므로 엄격하게 행해져야 하며, 오·남용되어서는 안 된다. 이 논문은 조합원 제명의 요건·절차·효과에 대한 법적 검토를 통해 합리적인 해석방안 및 바람직한 입법개선의견을 제시하였다. 이를 위해 판례 및 외국의 입법례도 참고하였다. 특히 협동조합기본법상 제명의 절차로 요구되는`의견진술기회 부여`를 `대항요건`으로 규정한 것은 잘못이라는 점을 지적하고 이를`효력요건`으로 이해해야 한다는 점을 지적하였다. 그리고, 해석상의 논란을 해소하기 위해 법 개정이 필요하다는 의견을 개진하였다. Co-operative members are defined as owners of co-operatives as well as constituents of a corporate judicial body. The expulsion of a co-operative member should not be misused or abused; rather, it should be practiced circumspectly because this measure deprives the member of his or her co-operative status. In this paper, a rational interpretation of several ideas and legislative opinions is proposed through a legal review of the requirements, procedures, and effects of the expulsion of co-operative members, referring to both judicial precedents and foreign legislation. It is argued that “the endowment of an opportunity to present excuses” should not be interpreted as “requirements for setting up opposition” but should be interpreted as “requirements for legal validity.” A legislative amendment is also proposed to resolve interpretational arguments.

협동조합기본법상 임원의 민사책임확장규정에 대한 검토

이선신 ( Seon Sin Lee ) 한국협동조합학회 2013 韓國協同組合硏究 Vol.31 No.2

There are some differences in the provisions regarding extension of civil liabilities of director between Framework Act on Cooperatives and Agricultural Cooperative Act (and other Cooperative Acts and Commercial Law, etc). The paper reviews the differences and their legal meanings. Futhermore, the paper points out that ‘the stipulation extending the Director`s Civil Liabilities in the Framework Act on Cooperatives has several unconstitutional and legally controversial points. Specifically, the article that stipulates that “the director who didn`t express the opposition in a definite manner during the board of directors should be regarded as a director who voted yes on the agenda, and consequently the director should take on the legal joint liabilities for the damages”. has several unconstitutional points, according to the general constitutional theories (like Principle of Proportionality (Principle of Excess Prohibition; Prinzip des Ubermaßverbot) and the Principle of Civil Liabilities) that have been established by many legal scholars and judicial precedents. The paper proposes that Framework Act on Cooperatives should be revised through resolving the inconsistency and the unconstituionality issues. More specifically, the article that stipulates that “the director who didn`t express the opposition in a definite manner during the board of directors should be regarded as a director who voted yes on the agenda” must be revised into the article that stipulates that “the director who was recorded not to raise the issue during the board of directors in the Board of Directors Meeting Minutes should be presumed as a director who voted yes on the agenda” in order to give the director the opportunity to overthrow the legal effect of taking on the legal joint liabilities for the damages by presenting counterevidence during trial.

통상임금제의 근본문제 및 포괄적 해결방안 검토

이선신 ( Seon Sin Lee ) 안암법학회 2013 안암 법학 Vol.0 No.42

These days, in Korea, there have been big controversies over the Ordinary Wage in the LABOR STANDARDS ACT. In fact, the problems of the Ordinary Wage had been included in the LABOR STANDARDS ACT since the Act was legislated after the model of Japanese LABOR STANDARDS ACT. And, despite of much efforts of the Judiciary and the Government officials and many legal scholars, the problems are not resolved yet and many law-suits have been filed and much legal arguments have developed into serious Labor-Management Disputes. Recently, Korean Government(the Ministry of Employment and Labor) has launched a committee which will deal with the agenda of the Improvement of Wage Institution. In this thseis, I`ve reviewed the fundamental problems of the Ordinary Wage and discovered several critical legal deffects in the LABOR STANDARDS ACT by way of comparing with the related articles in the Japanese LABOR STANDARDS ACT. For example, the Korean Act has the article about the definition of Ordinay Wage which was stipulated with several abstact and ambiguous concept-factors like "periodicity", "uniformity", etc. Besides, I`ve found that several abstact and ambiguous concept-factors like "periodicity", "uniformity", etc. have irrational points which are inappropriate to be used for building the definition-article of Ordinay Wage. For reference, the ENFORCEMENT DECREE OF THE LABOR STANDARDS ACT stipulates Article 6 as belows; Article 6 (Ordinary Wages) (1) For the purposes of the Act and this Decree, the term “ordinary wages” means hourly wages, daily wages, weekly wages, monthly wages, or contract wages which are determined to be paid periodically or in lump sum to a worker for his/her prescribed work or whole work. (2) In case of calculating ordinary wages under paragraph(1) at hourly rates, the amount shall be calculated pursuant to the following subparagraphs: 1. - 7. (omitted) (3) In case of calculating ordinary wages under paragraph(1) at daily rates, the ordinary wages shall be calculated by multiplying the number of contractual working hours per day by hourly wage rates prescribed in paragraph (2). And I`ve reviewed three best possible solutions for resolving the Fundamental Problems of the Ordinary Wage, and I`ve proposed that the Ordinary Wage System in the Act should be abrogated and a new alternative Criteria-Wage System should be entrusted with the Labor- Management Autonomy System as the Comprehensive Solution of the Ordinary Wage Problems. And after reviewing the Ordinary Wage System from the viewpoint of ``the essencial nature of wage,`` I`ve pointed out that the Ordinary Wage System is inharmonious(incompatible) with ``the theory of the compensation for the labor-management relation``. In the previous theses, I`ve proposed a new viewpoint about ``the essencial nature of wage.`` After reviewing the traditional theories about the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics), I`ve proposed ``a theory of the compensation for the labor-management relation``, as my unique opinion, and that is a viewpoint, through which, perceiving the essencial nature of the wage as ``the compensation for the continuation of labor-management relation``. In conclusion, I`ve re-emphasized that the Comprehensive Solution which comprises the abolition of the Ordinary Wage System and the acceptance of the new alternative Criteria-Wage System prefering Labor-Management Autonomy should be adopted to resolve the Fundamental Problems of the Ordinary Wage.