독일법상의 변경해약고지제도 = Änderungskündigung(Notice of Change Cancellation) in Germany

다국어 초록 (Multilingual Abstract)

So-called Änderungskündigung(Notice of Change Cancellation) is distinct from the ordinary dismissal in that the former is progressed with the purpose of changing terms and conditions of employment while the latter is for the termination of labor contract only. In Änderungskündigung, the labor contract is still in force as long as the employee consents the employer's subscription.
In Korea legislation talks on Änderungskündigung is yet to be evolved but in Japan it is actively discussed. Although Japan has not come up with concrete Acts yet, Änderungskündigung is used as a way for restructuring.
In this paper, by introducing German's case where Änderungskündigung is institutionalized I will provide a head start for the next step in this matter.
Germany has explicit statutory provisions for Änderungskündigung and it has been fortified with judicial precedent and legal theories both quantatively and qualatively.
Änderungskündigung has its fundamental characters in that it may cancel the whole labor contract depending on the employee's consent. Yet it allows the employee to accept changes in terms and conditions of employment but reserve judgement on social justification afterwards. By this, the employer continues its labor contract with the employee and makes the judgement on changed terms and conditions of employment possible. Änderungskündigung from the employer may be judged on the basis of the legal theory of both judicial dismissal and changes in terms
and conditions of employment. When the judgements thereof are lawful and valid, Änderungskündigung would be in effect.
Änderungskündigung is meaningful in two ways: firstly, it allows the court to judge and control on two kinds of declaration of employer and secondly, it can be used a way for implementing management decisions and avoiding extreme measures like dismissals or a mass dismissal.

목차 (Table of Contents)

• I. 서
• II. 총설
• III. 변경해약고지의 실시
• IV. 변경해약고지의 정당성
• V. 변경해약고지에 대한 구제소송
• VI. 사업장협의회의 참여
• VII. 결론

참고문헌 (Reference)

1 이정, "일본적 고용관행의 변화와 전환기의 노동법제"

2 官野和夫, "今後の勞動契約法制の在り方に硏究会中間取りまとめ"