근로관계에서의 균등대우원칙에 관한 연구

다국어 초록 (Multilingual Abstract)

This study explores not only specific legal issues such as gender-based discrimination, which some statutes have expressly prohibited, but also general matters of discriminatory employment practice in workplace. The main argument is an Equal Treatment Principle that employer should not treat employees differently in comparable group on employment conditions without good causes. It is the duty to treat equally employees with the same condition.
Therefore, the duty of equal treatment can be divided into the two categories. The former means that some statutes expressly put employer under the obligation. For example, there are many provisions prohibiting employment discrimination on the basis of gender, race, color, national origin, religion. The latter relatively can be understood as the implied obligation that is deduced from a legal construction through a general legal principle. The duty of equal treatment for employer itself is to be identified with the equal treatment principle on the sphere of employment law.
In relation to the equal treatment principle, it is important to consider harmonizing with the principle of private autonomy. If two principles come into conflict with each other in practice, an agreement between parties shall be considered prior to the equal treatment principle. It is the reason why there are specific provisions on some statutes prohibiting discriminatory practices in workplace.
Accordingly, Discriminatory practices by employer is classified into whether some practices are against clear provisions of statutes and whether some violate the duty of equal treatment through general legal principles. Each of them requires us to apply different criteria for reviewing cases in practice. One is a proportionality review for the former case, and the other is an abusive discretion doctrine for the latter.

After that, this tries to classify discriminatory practices into several categories and to apply the equal treatment principle to each discrimination by type in aspect of employment including hiring, compensations, employer's directions and dismissal. In case of hiring, unless applicants are covered with express provisions against specific discrimination, even if employer unequally treat the applicants for a job, it can not be regarded as a matter relating to discriminatory practice in employment, because the freedom to conclude a contract is prior to all others in the process of hiring. On the contrary, in the cases of compensations, employer's directions and dismissal, not only statutes prohibiting discrimination in employment but also the equal treatment principle are very important criteria for review of discriminatory practices. Besides, this deals with matters of the difference in employment conditions between regular employees and irregular employees including most of the fixed-term employees. And other subject is the doctrine of equal pay for equal work to men and women in the same establishment.

In conclusion, this argues that the legal proceeding protecting employees' right to be free from discrimination can be diversely instituted by the type of discriminatory practices. For example, if some employees are excluded from certain benefits with the basis of discriminatory practice, such as a discrimination in compensation, the right to demand on account of the difference should be granted to the injured employees. And if employer dismisses some employees from jobs with a discriminatory intention, it should be legally invalid in order to be free from the legal effect of the dismissal.

국문 초록 (Abstract)

제1장 서 론
Ⅰ. 문제의 제기 1
Ⅱ. 연구의 목적 및 범위 6
Ⅲ. 연구배경과 연구방법 8
Ⅳ. 용어의 정리 11
제2장 근로관계에서의 균등대우원칙의 법적 기초
제1절 근로관계에서의 균등대우원칙의 법적 근거의 검토 13
제2절 일반적 균등대우 및 특정한 차별금지의 체계화 시도 58
제3절 요약정리 73
제3장 근로관계에서의 균등대우원칙의 내용
제1절 총설 74
제2절 근로관계에서의 균등대우원칙과 사적자치의 상호관계 95
제3절 특정한 차별금지규정의 내용 109
제4절 균등대우의무 위반여부의 통제기준 119
제5절 요약정리 128
제4장 근로관계에서의 균등대우원칙의 구체적 적용
제1절 채용과 균등대우원칙 130
제2절 보수와 균등대우원칙 142
제3절 해고와 균등대우원칙 254
제4절 지시권과 균등대우원칙 286
제5절 요약정리 291
제5장 균등대우원칙 위반의 효과와 구제의 내용
제1절 차별받은 근로자의 구제 293
제2절 요약정리 317
제6장 결 론
제1절 요약 및 결론 318
제2절 차별방지의 실효성 확보를 위한 법정책적 과제 320