勞動法上 ‘事業讓渡’의 槪念

• 영문명: The Concept of the Business Transfer in Labor Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김경태(Kyong-Tae Kim)
• 간행물 정보: 『비교사법』比較私法 제14권 제2호, 481~519쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

  ‘Transfer of business" under commercial law is classified as a contract which takes effect when rights on the contract are individually succeeded to one"s counterpart. Due to such characteristics, many opinions were raised on succession of employment relationship when business transfer occurs, and now majority agree on succession of employment on occurrence of business transfer. However, in court, the term ‘ransfer of business" is used identically in business and labor cases, which the writer believes the concept of the term should be defined differently in business and labor cases. The term, “business" should be defined differently in labor law and commercial law, considering respective law"s purpose and subject of regulation. The writer does not agree with such trials to determine the tenability of business transfer in labor law by including labor factors to the "business" defined under business law. Labor law"s purpose under this subject should be to protect laborers whose relationship with the firm has been ceased as a result of business transfer under business law. It also looks meaningless to include labor factors to determine tenability, since laborers excluded from succession of employment relationship should be considered under labor law. The judgement on laborers is merely an “ex-post condition" to entitle the legal effect of ‘employment relationship succession" to business transfers which have already been in effect. Still, the writer believes that it is necessary to define ‘business transfer" differently under labor laws, even we do not consider the identity of labor factors as a condition for tenability of a business transfer. First, it is necessary to entitle legal effect of general succession of employment relationship by introducing a different definition of business transfer under labor law. Second, for cases that are not admitted as business transfers under business laws (eg, employer change when identity of business is maintained. P&As), it is necessary to admit employment succession by including such cases to business transfer defined under labor law. For these reasons, the writer believes an independent concept ‘business transfer" under labor law is necessary, and defines it as follows: “Cases when legal actions are involved to transfer a business or parts of business to third parties, with maintaining their identity, including those regulated under commercial law"

목차

Ⅰ. 들어가며
Ⅱ. ‘人的 同一性’을 基準으로 한 營業讓渡 槪念의 二元化
Ⅲ. 勞動法上 ‘事業讓渡’ 槪念 導入의 必要性
Ⅳ. 勞動法上 ‘事業讓渡’의 槪念 및 判斷 基準
Ⅴ. 글을 맺으며
【참고문헌】
【Abstract】

키워드

기업변동 사업양도 영업양도 근로관계의 승계 인적 동일성 자산부채이전 경영상 이유에 의한 해고 Corporate Restructuring Transfere of Business Identity of Labor Factors P& A Succession of Employment Relationship Dismissal for Managerial Reasons