대법원의 근로관계 인식에 대한 조명 -민주헌정이후 시민법적 인식으로의 "회귀" 및 "지속"의 평가- : Review on the Precedents of the Supreme Court about Labor Relations -with References to Critical Decisions after the Constitutional Law of 1987 year-

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서울대학교 법학연구소
법학, Vol.43 No.3, pp. 205-228
노동기본권의 실효성 보장노동법의 위기긴박한 경영상의 필요성쟁의행위의 정당성 여부
This Article attempts to overview the critical precedents of the Supreme Court

about labor relations after the Constitutional Law of 1987 year, and to evaluate

the Supreme Court's basic legal point of view on them.

The author argues that tendency of the precedents might be, in a short term,

deregulation of labor protection and restriction on the right to strike. He analyzes

that this trend of the Supreme Court could reflect rapid change of economic

circumstances for competition and efficiency of management rather than social equity

for labor protection under so called 'crisis of labor law' era.

The author points out the basic reasoning of the Supreme Court as following;

1) The precedents of amending the rules of employment unfavorably to workers

can legally help for employer to easily deteriorate working conditions for promoting

competition and efficiency of management. 2) In order to conveniently take restructuring

rather than employment stability, legal reasoning of management dismissal and

procedural restrictions on dismissal could give employer flexible alternatives. 3)

The precedent on validity of labor contract fixed term exceeding one year might

back up for employer to hire massive temporary workers. 4) The precedent of rigid

restrictions on the right to strike would restrain workers' collective action against

restructuring or deteriorating working conditions by employer.

The author contends that this kind of orientations of the Supreme Court would

legally reflect consciousness of ruling class and competitive social circumstances

in Korea nowadays. He further argues that approaches of the Supreme Court on

labor relations might be considered as returning from legal principle of social law...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 43, Number 1/4 (2002)
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