合意解約에 의한 勤勞關係의 終了에 관한 硏究
(A) Study on the Termination of Work Relation caused by Consensual Rescission
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Towards the end of 1997, Korea went through an unprecedented foreign exchange crisis which brought an unstable economic crisis nationwide. However with the intervention of the IMF, Korea had to carry out restructuring on a political level in almost all areas as in those companies and monetary facilities in order to revive the nation's spirit and economy. At the same time the Korean companies propelled restructuring by downsizing, opting the consensual rescission method which was done by the workers submitting resignation form of such sorts as voluntary, provoked and especial early resignations. In such cases where the management dismisses a worker through the standard dismissal procedure, whether or not it was justifiable can be determined by the factors in the Labor Standard Act. However to avoid the rigidity in dismissing a worker , the management generally tends to enforce the workers to submit a resignation letter either choosing to voluntarily resign or urging them to resign. This kind of system when seen from a superficial level can be said that the restricted regulation of the Labor Standard Act is not necessarily being well applied. But if the resignation letter has been submitted according to one's real intention, not much of a problem should arise. However with no desire to resign whatsoever and yet the worker has been dismissed from his workplace, then by the Labor Standard Act principle of law can such a case be disciplined? This paper intends to compare the consensual rescission of the work contract to voluntary resignation, dismissal and liquidation thereby studying its concept and legal character. Also, regarding the effectiveness of the consensual rescission in a work contract, this paper has set up a criteria to point out that by presenting such resignation letters where an untrue declaration or a declaration under compulsion, fraud or misapprehension were implied, end up invalid or could be the cause for annulment based on the Korean and Japanese judicial precedent analysis. Furthermore, this paper delves into observing whether the purpose of the consensual rescission lies in violating the social order or the violation of the enforcement law thus making it invalid. Also it examines the presence of the effectiveness of the consensual rescission in the case where the management has severed the work relation by an unreasonable declaration of the work act. Another area in perspective is the conditional dismissal and en masse resignation in relation to the essential, substantial resignation. Finally this paper looks into the factors and its effectiveness in approving the dismissal. Eventually in order to annul any disputes in the case where a consensual rescission has been reached between the management and the worker, a system must be set up where an approval from the supervisor in the Labor department must be obtained. I hope to see a continuous research on the Law Theory of consensual rescission of the work contract as well as both parties form a rational labor and management culture in the near future.