약관과의 비교를 통한 취업규칙 규제의 문제점


Problems Involved in Regulating Terms of Employment when Compared with that of Standardized Contract Terms


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Employers are willing to pre-formulate the terms of employment to enter into contracts with employees. Employers enact in the field of labor contracts the rules of employment for the purpose of concluding agreements with multiple employees, whereby the contractual partners of the employer, i.e. the employee are in a similar position as consumers confronting standardized contract terms of entrepreneur enjoying privileged market position. Employers, who will act as less-controlled entrepreneurs, are mighty enough to "dictate" the individual terms of contracts. Entrepreneurs have power to determine every and each condition of such contracts unilaterally in an overwhelming position, which would lead to the inevitability of making one of the two extreme choices, so to say "take it, or leave it" situation. When it comes to labor problems, the cause of these typical situation lies in imbalance of possibility to have influence on the contract terms, which originates from the deficiency of a third choice on the side of the contractual partner, or rather, employee.
The Regulation of Standardized Contracts Act is enacted to establish sound order in business transactions and thus to protect consumers from confronting standardized contracts containing standardized contracts with unfair terms and conditions in them. Like the standardized contracts, the terms of employment containing unfair terms and conditions which correspond to the "abuse" concept of their prevailing negotiation position needs legal regulation. Therefore, the terms of employment is regulated by the Labor Standard Act. This study shows the difference between the regulations on the dimensions of contract- and/or consumer law and labor law, respectively.
In case of standardized contracts, an entrepreneur shall clearly state to his customers the terms and conditions of standardized contract and deliver a copy of it and help the customer understand it. If an entrepreneur violates this article, he may not have the standardized contract terms integrated in the relevant contract. However, in case of the terms of employment, there is no any statutory provision ruling the legal effect when an employer has not satisfied all the requirements.
This problematic reality is accessible to disputes in each specific cases. Where any part of the standardized contracts is null and void under article 6 through 14 that govern the legal effect of unfair clauses in standardized contracts, the relevant contract shall not be null and void as a whole pursuant to the Regulation of Standardized Contracts Act. But where any part of the terms of employment is unfair or unfavorable to the consumers, the relevant provision is recommended to be corrected properly by way of administrative guidance which has no legal binding force.
A person who has legal interests and a third party who is consumer-related organization etc may request for examination whether the standardized contract violate the Act. But there is no such statutory provision in case of unfairness of the terms of employment. There is an obvious difference in the penalty imposed to a person who fails to comply to an order of the Fair Trade Commission or the Ministry of Employment and Labor between standardized contracts and the terms of employment.
The Regulation of Standardized Contracts Act provides the detailed rules about the standard contract terms used in relevant transactions. The Ministry of Employment and Labor promulgates with authority the standard terms of employment and distributes it to the employers, but legal basis is lacking and could hardly be more than a detailed guidance served as a sample. Wide usage of such standard terms of employment requires the process.


Ⅰ. 문제의 제기
 Ⅱ. 약관과 취업규칙의 비교
  1. 개념상의 차이
  2. 성립상의 차이
  3. 내용통제상의 차이
  4. 규제상의 차이
 Ⅲ. 취업규칙 규제의 문제점
  1. 근로계약 및 단체협약에 관한 논의
  2. 계약편입 및 내용통제에 관한 논의
  3. 규제에 관한 논의
 Ⅳ. 결론


  • 정명현 Jung, Myung-Hyun. 법학박사, 동아대학교 초빙교수.


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