노동관행의 성립과 효력 - 대판 2001.10.23, 2001다53950

• 영문명: The formation and force of Labor Practice
• 발행기관: 한국재산법학회
• 저자명: 이달휴(Lee Dahl-Hugh)
• 간행물 정보: 『재산법연구』財産法硏究 第24卷 第1號, 437~463쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

  This purpose of this study is to analyze the verdict pronounced by the Supreme Court on October 23, 2001(No. 2001Da53950 Verdict) on the premium for special products paid by the employer.
  The contents of this verdict is the fact that the Supreme Court considers the premium for special products paid by the employer as wage, because this premium was paid on the ground of labor practice.
  I suggest three problems on this verdict:
  First, this verdict is against the other verdict pronounced by the Supreme Court on May 31, 2002(No. 2000Da18127 Verdict) on the wage, because the latter claims that premium has the nature of exchanging labor to be the wage regardless of periodic, continuous and uniform pay. So there is inconsistency between the former and the latter.
  Second, the employer should not have the recognition to oppose the formation of labor practice. In this case, periodic, continuous and uniform pay should not be considered as wage because there is the employer`s recognition to oppose the formation of labor practice.
  Third, labor practice has legal force on the industrial issues. It is problem to give the labor practice general legal force without the distinction between the labor practice that is factual custom and the labor practice that is not it.
  In this case, it is inappropriate to give legal force the labor practice because this is not factual custom.
  In the conclusion, Supreme Court should judge if the periodic, continuous and uniform pay has the nature of exchanging labor or labor practice consists the factual custom in advance of others. If it is so, it has legal force.

목차

[사실관계]
[판결요지]
[판례연구]
Ⅰ. 평석의 범위와 판례의 문제점
Ⅱ. 임금해당성 판단
Ⅲ. 노동관행의 성립
Ⅳ. 노동관행의 적용과 효력
Ⅴ. 결론
참고 문헌
〈Abstract〉

키워드

노동관행 사실인 관습 임금 특별생산격려금 임금 상여금 관습법 계약 labor practice premium factual custom wage legal force employer