구조조정을 위한 인사권의 행사와 노동법의 과제

Abstract

Korea companies have carried out an active and continuous restructuring of their employees after the 1997 economic crisis. Especially, the standard for restructuring was a personnel measure based on comparative evaluation results through right of administration. A recent tendency or pattern of personnel administration for restructuring can be divided general employment and fixed-term employment by a view of labor contract, they appear a difference in legal basis of employment contract or labor law. In the first pattern, employers have dismissed their employees through the administrative leave or interchange of personnel as to evaluation results. in the second type, employers could freely make fixed-term employees terminated by refusing to renew an employment in the reason of personnel performance rating. Korea Labor Standards Act, and Employment Protection Legislation(2007 enactment) have not law-clause to being restraint under discipline of employees as the right of personnel administration for restructuring. Judicial courts adhere to the principle that it is authority of employer in general employment or renewal of fixed-term contract is at the discretion of employer. but they gradually try to expand the scope of its exception or to reduce a range of discretion. this is a law-theory of rationality or equity in acting of right of personnel administration. In the end, it is necessary to accept a recent tendency of personnel administration for restructuring and to introduce this within the subject of labor law in order to protect employees under dismissing or refusing to renew an employment.