근무성적 불량자에 대한 노동법의 대응

다국어 초록 (Multilingual Abstract)

A social atmosphere is being created where employers take it for granted that workers are, in practice, fired due to their poor service records in the recent relations between labor and management. This study is designed to look into problems as to whether such a discharge is made possible under the Labor Law in light of the characteristics of labor responsibilities or not.
Labor obligation under a labor contract can be viewed as obligation de genre since its contents and the quality of labor are not confirmed. When following the performance criteria for obligation de genre, one cannot confirm the performance criteria for labor obligation. As a result, it is impossible to assess a worker's labor offer. The following three reasons can be cited: Labor obligation is characterized by labor-offering liabilities pursuant to the purpose of a labor contract; The recognition of one of the parties discords with that of the other regarding the quality of labor liability; The results of labor offer is not closely associated with the ability of the worker.
Assessment of offered labor is being made in the practices of labor-management relations, but such factors as a possibility of criteria for performing liabilities for labor offer, a possibility of assessment and problems with assessment itself are not properly considered. Also, one should take all these factors into account in determining the legitimacy of discharge. When justification is evaluated according to the worker's responsibility, he or she can be subjected to disciplinary discharge on account of constituting the default of obligation in case the responsibility rests on the worker; even in this case, when the results of the worker's poor service record are intertwined with the responsibility of the employer, the legal principles of comparative negligence should be applied and the reasons for the worker's responsibility should be objective and obvious. In case no responsibility rests on the worker, even ordinary discharge is not allowed unless disciplinary discharge is possible. This falls within the risk area that the employer should shoulder.
If it is not possible to dismiss workers with poor service record, then the place of business or the company will be in danger of collapse or disorder.
The worker's income can be reduced on the basis of changes in circumstances under this situation. It is normal to reduce the worker's income with a change in a performance-based pay system including an annual salary system, but reducing the worker's income is taken to be possible as an exercise of human rights. This is not limited by Article 95 of the Labor Standards Act.

참고문헌 (Reference)

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