글로버메뉴 바로가기 본문 바로가기 하단메뉴 바로가기

논문검색은 역시 페이퍼서치

법학논집검색

Ewha Law Journal


  • - 주제 : 사회과학분야 > 법학
  • - 성격 : 학술지
  • - 간기: 계간
  • - 국내 등재 : KCI 등재
  • - 해외 등재 : -
  • - ISSN : 1226-2005
  • - 간행물명 변경 사항 :
논문제목
수록 범위 : 6권 1호 (2001)

노동법에서의 Gender -직장내 성희롱을 중심으로-

이철수 ( Cheol Soo Lee )
5,800
초록보기
Since the issue on sexual harassment in workplace aroused the interests of the public upon the occurrence of the case of Ms. Woo, assistant instructor of the Seoul National University, this issue has become the central topic for the protection of women in the workplace. Reflecting such tendency, in the Equal Employment Act, the sexual harassment is considered as a kind of gender discrimination, and the Act imposes a liability under the Public Act to the employer to prevent the sexual harassment. By dealing with the structure of the illegality of the sexual harassment, and the liability of the employer in this essay, I expect that this issue will be at issue in earnest deals, and I intend to provide the clue to the discussion on this issue. In Chapter 2, I will examine the overview on the current laws concerning the sexual harassment, and in Chapter 3, I will review the precedents concerning the sexual harassment prior to the lawmaking of the sexual harassment on the basis of legal principal. And then, by considering all factors, I will express my opnion on the theory of interpretation and legislation in the current situation after the lawmaking of sexual harassment.

법률행위(法律行爲)의 해석(解釋)과 표의자(表意者)의 효과의사(效果意思)

송덕수 ( Tuck Soo Song )
6,500
초록보기
Nach Koreanische BGH 1996. 4. 6, 96da1320(K-BGH 1996. 4. 6)bei der Auslegung der Verfugungsurkunde musse die wirkliche Wille der Parteien berucksichtigen, und wenner unerkennbar ware, die Urkunde nach demselbe Geschaftswille, der von der Erklarung vermutet werden, auslegen musse. Aber auch die Verfugungsurkunde mub als die emfangsdurftige Willenserklarung nach Emfangerhorizont auslegen. Daher die alle Umstande uber die Erklarung mussen berucksichtigt werden. Und dabei die wirkliche Wille der Parteien ist unerheblich. Wenn die wirkliche Wille der Parteien nicht erkennen werden, das Rechtsgeschaft unter Berucksichtigung der sonstige Umstande ausgelegt werden mussen. Der Geschaftswille, der von der Erklarung vermutet werden, mub nicht berucksichtigt werden. Solche Geschaftswille ist wirklich leer. Ferner in dieser Rechtsprechung mussen die Tatbestande der Willenserklarung nicht darstellen. Und der Geschaftswille, der von der Erklarung vermutet werden, ist nicht der Tatbestand der Willenserklarung. Aber das Ergebnis dieser Rechtsprechung ist gerecht.

단체협약체결권과 인준투표제의 효력

신인령 ( In Ryung Shin )
6,300
초록보기
Recently, confusion of ``the interested party`` with ``the party in charge`` in the course of collective bargaining has come up to the surface and caused many disputes: the so-called democratic trade unions, in order to prevent executive members of a trade union from making arbitrary decisions in the process of collective bargaining and being bought over to the management, stipulated expressly in the union regulation or collective agreements their own voting for authentication of the agreements made in advance between the representative of the trade union and the management, which is the self-governing right of the trade union provided for in the existing law; the economic organizations of employers, feeling uncomfortable with the new regulation of the trade union, raised an objection to the practice of authentication voting; the Ministry of Labor, accepting the complaint of the economic organizations, made out a guideline to control the voting scheme. The Ministry of Labor argues in the guideline that the union`s authentication voting is invalid as it restricts the authority of trade union representatives for making collective agreements as well as collective bargaining. It bas been argued that this administrative interpretation of the Ministry of Labor was made out of its mix-up over the principles of the labor law. The Ministry was criticized for failing to recognize the difference between the factual act of bargaining and the juristic act of making agreement and to interpret correctly the paragraph 1 of the Article 33 of the previous Trade Union Act. The Ministry attempted to make a legislative solution to the problem surrounding the authentication voting practice, but it cannot be a perfect device for denying the validity of the authentication voting of all union members. The Ministry may have intended, with the paragraph 1 of the Article 29 of the revised Trade Union and Labor Relations Adjustment Act, to make the authentication voting invalid and prevent collective agreements made between the union representatives and the management from being defied later by the union members. The interpretation different from the legislative intention, however, can gain general acceptance thanks to the spirit of the Constitution to guarantee the workers` right of association. Moreover, a lot of trade unions are still holding on to the voting practice, but there has been less troubles caused by the practice than those by other disputes. Considering that there has been nolegal row over the voting scheme since the revision of the labor law, we can say that it is being established as a new procedure for all of the parties concerned. Even though the Supreme Court nullified the effect of the authentication voting, it seems to admit that neither of the two parties can reap the benefit from the troubles arising from collective agreements made by the union representative, but disapproved by union members. The lower courts made decisions on the case comparatively in accord with the principles of the labor law. Meanwhile the judgement delivered by the Supreme Court was made with little regard for the spirit of the Constitution and the labor law and can be seen almost as a decision for policy implementation rather than a legal one, which can lead to deteriorating the judicial justice and impeding the progress of precedents study. In brief, the Supreme Court, by justifying the intervention of the state and employers in workers` use of collective bargaining right, did damage to workers` autonomy in exercising the right of collective bargaining. On the other hand, we can expect a new leading case to appear for proper direction, as the precedents are changing and the judge-made law is not the primary source of law in our legal system. It is a matter of course that as the collective agreement is closely connected with workers` right to live, including working conditions, the opinion of union members collected through democratic procedure should be sprecially taken into account in the process of collective agreements conclusion. To sum up, the authentication voting practice should be viewed as valid, since union representatives` authority to make collective agreements is the kind of authority to be controlled. They have the status of substantial difference from those of a civil organization for private property in the civil law. It is a trade union that they represent, a special organization with its own autonomy and democracy to improve workers` standard of life and guarantee their human dignity. In this regard, it should be pointed out that their representative authority cannot be treated as the same one as the authority of those in a civil organization in the civil law.
<< 1 2 3