예고해고의 적용 예외에 대한 법적 검토 - 헌법재판소 2015. 12. 23. 선고 2014헌바3 결정을 중심으로 - = Legal Analysis of the Exemption Clause in the Application of Advance Notice of Dismissal - Review of Constitutional Court Decision 2014HunBa3 of December 23, 2015 -

다국어 초록 (Multilingual Abstract)

The Advance Notice of Dismissal as prescribed in Article 26 of the Labor Standards Act of Korea (hereinafter referred to as the “Labor Act”) was legislated to provide at least the minimum amount of financial support to dismissed employees by offering a period of time to find new work or paying advanced dismissal wages by enforcing employers to give an advance notice of dismissal 30 days prior to the actual dismissal of the employee. On the other hand, the proviso of Article 26 and Article 35 of the Labor Act provide the exception to the advance notice obligation rule, and Article 26 Paragraph 3 has caused a long-time controversy over the legitimacy of making an exception to the employer’s obligations to employees “who [have] been employed for less than 6 months as a monthly paid [employee].” Article 35 Paragraph 3 of the Labor Act was once brought before the Constitutional Court in 2001, but then the Court ruled that it could not find exempting employees who have been employed for less than 6 months from the protection of advance notice of dismissal unconstitutional. However, a recent decision by the Constitution Court reversed its ruling when Article 35 Paragraph 3 was brought before the Court a second time, and the law was ruled unconstitutional on the grounds that it infringed the applicant’s right to labor and violated the principle of equality.




The State’s obligation to protect employees from employer’s dismissal is derived from both Article 15 of the Constitution of Korea (hereinafter referred to as the “Constitution”) that guarantees the freedom to occupation and Article 32 of the Constitution that provides the right to work. An employer’s freedom to dismiss an employee is restricted on the grounds of the employee’s right to work which is at its core a ‘social right’, so the Court should apply the ‘Rational Basis Standard’ in deciding its constitutionality. As a ‘dismissal’ is not an act of State power but an act by a private individual that has the potential to infringe upon a third party’s constitutional right, the need for the State’s obligation to protect the constitutional right arises, to which the ‘Rule of Minimum Protection’ is applied. Both the 2001 decision and the 2015 decision have based their ruling on the foundation that Article 32 of the Constitution that guarantees the right to work is the grounds for the State’s obligation to protect employees from dismissal, and went on to review whether Article 35 Paragraph 3 infringes on that right to work. Furthermore, as the Court in both decisions applied the ‘Rational Basis Standard’ as the applying rule to social rights, both decisions acknowledged the broader scope of legislative power over the matter-in-fact. However, the ruling of the Court differed on that part that the Constitutional Court has become more active in protecting the right of employees with the passage of time, and the recent decision can be applauded for being more progressive on that issue. Nonetheless, the 2015 Decision raises the question of how much the Court took into account the Doctrine of Division of Power and the Doctrine of Democracy. Under the Doctrine of Division of Power, to the legislative power the Constitution acts as a regulatory force on its conduct, while to the judicial power the Constitution acts as standard for regulation. The Labor Act provides a number of protection agencies for the employee in regards to the establishment, maintenance and conclusion to any labor relations, and Article 23 of the Labor Act provides that any dismissal shall be based on ‘legitimate reasons’, which is duly applied to employees who have been employed for less than 6 months as well. Taking that into consideration, the mere fact that Article 35 Paragraph 3 of the Labor Act exempts employers from giving advance notice of dismissal to employees who have been employed for less than 6 months does not immediately constitute an infri...

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