earticle

영어

The number of companies in corporate rehabilitation proceedings due to economic depression has been increasing, and the controversial issues of whether those companies can layoff employees in the midst of rehabilitation proceedings arisen, but standard rules on that issue hasn't been organized yet. This issue, like in Korea, has not been settled in Japan either. Recently the case of JAL's laying off its employees during the reorganization proceedings that will influence similar court case in Korean. Accordingly, the objective of this research is to help interpret the law of Korea by studying the court's ruling and interpretations of conditions of company's laying off in reorganizing proceedings. Followings are: first, reviewing the features of laying off in terms of Corporate Reorganization Act in Japan, second, reviewing the theories and legal precedents, lastly reviewing what suggestions we can get from those studies. First, although the regulations regarding laying off has been stipulated in Civil Law, not in Labor Law, they established “the theory of abuse of rights.” nullifying the legal force in Civil Law. Later, it influenced the Labor Standard Act in 2003 when it was amended, and became stipulated in the Labor Contract Act when it enacted in 2007. Second, the problem arises regarding what law can be applied when the company in reorganizing proceedings has to layoff employees; Labor Contract Act or regulations in Corporate Reorganization Act. Some support the former while majority support the latter. Third, in case that we take layoff theory based on Labor Contract Act, the problem also arises whether we should take the same measures as normal corporate or take flexible measures. The general consensus on this issue is taking the latter. Fourth, in Japan, the companies in reorganizing proceedings make every effort to avoid redundancy dismissal; a personnel reshuffle, transferring to affiliates, voluntary retirement, pay cut, suspending pay bonus, pay cut for executives, decrease the number of executive officers etc. In recent, supporting reemployment for laid-off workers are being considered seriously. Fifth, there are controversies over the standard of designating the workers who are to be laid off; age and disease. Lastly, proceedings of agreement with labor union is considered seriously. General theory is that it requires serious effort for the proceedings of agreement with labor union, but for reorganizing proceedings, some argue that they should take flexible measures.