각국의 직업선택의 자유와 실질적 보장에 관한 노동법상 고찰

• 영문명: A REVIEW OF FREEDOM AND SUBSTANTIAL SECURITY FOR OCCUPATIONAL OPTIONS IN EACH COUNTRY FROM THE PERSPECTIVE OF LABOR LAW
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이희성(Lee Hee-Soung)
• 간행물 정보: 『비교사법』비교사법 제11권 4호(상), 387~417쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.12.01

영문 초록

  In the modern capitalistic countries that pursue the idealistic state of welfare, the freedom of occupational options is considered a right for survival that is required to security the substantial freedom beyond any formal or abstract perception of it under the near-modern civil law system. Moreover, it is also recognized as a basic right of workers to satisfy their ego by developing and sharpening their aptitude and capacity through job and to achieve their demands and goals to improve their environment by upgrading the social and economic status. The occupation or job in this sense shall not be confined only to certain kinds that have been traditionally accepted by society but should be comprehended as that which is, despite the socio-environmental changes, continuously requested to earn means for mental as well as physical sustenance without sacrificing public interests. Such freedom of occupational options is guaranteed by statutes in countries like Korea, Germany and Japan. Even in the USA and Canada where no security of freedom for occupational options is provided in a statutory form, it is regarded as one of inherent rights that are generally guaranteed.
  Today, there are still disagreements as to significance and detailed contents of the freedom of occupational options in view of labor-related features among scholars specializing in labor law. Majority of them, however, stand for the view that "the freedom of occupational options should be so extensively and comprehensively interpreted that it may encompass free decisions of workers to select, perform and change occupation, their free choice of vocational training place, free secession from working place, holding concurrent posts and standing in competitive position". In such interpretation, the freedom of business may also be categorized as a sort of freedom to perform job. On the other hand, employers who own and utilize production means are deemed to have the legal choice to employ workers with the right of management. In this situation, it is essential for labor and management to agree to unite production means and working force in compliance with the capitalistic legal system.
  The labor law of the modern welfare countries has the top priority to realize the freedom of occupational options by providing whole citizens with jobs to improve their economic status and realize social justice. The government should be able to offer to members of the nation job opportunities that may security certain level of working conditions and help them choose jobs that suit their aptitude and improve their ability. It must be assured further that workers can transfer to all upgraded position in return for their laborious work.
  It may be concluded that the freedom of occupational options, together with the national policy for realization of full employment, conforms with the legal obligations of the nation toward the labor right. It is, thus, imperative to detail the concept and contents of the right to work and prepare criteria for interpreting the positive laws by reformulating the freedom of occupational options under the contemporary paradigm.

목차

Ⅰ. 문제의 제기
Ⅱ. 직업선택의 자유의 의의
Ⅲ. 각국의 직업선택의 자유
Ⅳ. 노동법상 직업선택의 자유와 보장을 위한 구체적 내용
Ⅴ. 결론
참고문헌
【ABSTRACT】

키워드

직업선택의 자유 근로의 권리 근로의 자유 생존권보장 고용보장 고용선택의 자유 적당한 직업 직업의 자유 The freedom of occupational options A right for survival The labor right A basic right of workers The security of freedom for occupational options The right of management Contents of the right to work The security of employment