지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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As a part of 2010 Reform Program in Germany, ‘The Act on Reform of Arbeit Market’ at 24th December 2003 has been significantly revised regarding on the ‘Act of Protection from Dismissal’(KSchG), and the point is the Art. 1a - which explains the employee’s right for compensation(Abfindungsanspruch), in case of dismissal on account of management practices. According to the ‘Act on Protection from Dismissal’, the employee has the right to claim the right for compensation, when;
1) the dismissal has occurred under the necessity on account of urgent management practices, 2) the employer announces the employee, that the dismissal has occurred under the inevitable necessity on account of urgent management practices, and the employee can claim the compensation after the 3-week period of action, 3) and when the employee does not claim the compensation in that period.
The reason, that the ‘Act on Protection from Dismissal’ in Germany defines the right for compensation caused from the management practices, is to prevent the ‘Act on Protection from Dismissal’ being misused as just to claim the settlement money between the concerned parties, not as to be used as a maintenance protection of labour relation? the original meaning. So german legislator introduced the ‘Compensation Solution’ in the ‘Act on Protection from Dismissal’, to prevent its original purpose from being spoiled and, at the same time, to provide flexible extrajudicial means to both concerned parties. There is a critical view that this Art 1a. can cause another legal issues and legal uncertainties. But the majority opinion seems to be on positive side, and any sporadic and case-by-case issues can be overcome with upcoming theories and judicial precedents. Lastly, in case of republic of korea, there is a system named ‘Monetary Award in case of Unfair Dismissal’(Art. 30-3 Korea Labor Standards Act), but it’s different from the right of compensation in germany, since the way of relief in unfair dismissal is by obtaining effectiveness and securing the measure of diversity. Considering that the purpose of introduction of the right of compensation in germany can be effective in many ways to republic of korea, their case can be a considerable reference when legislating any solution for compensation in any dismissal by necessity on account of urgent management practices.
1) the dismissal has occurred under the necessity on account of urgent management practices, 2) the employer announces the employee, that the dismissal has occurred under the inevitable necessity on account of urgent management practices, and the employee can claim the compensation after the 3-week period of action, 3) and when the employee does not claim the compensation in that period.
The reason, that the ‘Act on Protection from Dismissal’ in Germany defines the right for compensation caused from the management practices, is to prevent the ‘Act on Protection from Dismissal’ being misused as just to claim the settlement money between the concerned parties, not as to be used as a maintenance protection of labour relation? the original meaning. So german legislator introduced the ‘Compensation Solution’ in the ‘Act on Protection from Dismissal’, to prevent its original purpose from being spoiled and, at the same time, to provide flexible extrajudicial means to both concerned parties. There is a critical view that this Art 1a. can cause another legal issues and legal uncertainties. But the majority opinion seems to be on positive side, and any sporadic and case-by-case issues can be overcome with upcoming theories and judicial precedents. Lastly, in case of republic of korea, there is a system named ‘Monetary Award in case of Unfair Dismissal’(Art. 30-3 Korea Labor Standards Act), but it’s different from the right of compensation in germany, since the way of relief in unfair dismissal is by obtaining effectiveness and securing the measure of diversity. Considering that the purpose of introduction of the right of compensation in germany can be effective in many ways to republic of korea, their case can be a considerable reference when legislating any solution for compensation in any dismissal by necessity on account of urgent management practices.
목차
Ⅰ. 보상청구권규정의 도입배경
Ⅱ. 보상청구권의 규율취지와 법적 성격
Ⅲ. 보상청구권의 요건
Ⅳ. 마치며
참고문헌
〈Abstract〉
참고문헌 (19)
참고문헌 신청
1. [학술지(정기간행물)] - 권혁 / 2007 / 노동시장 유연화를 위한 2003년 독일 해고보호법(KSchG) 개정내용과 그 시사점 / 법학연구 48 (1) : 1325 ~ 1350
2. [단행본] - 노사관계제도선진화연구회 / 2003 / 노사관계법․제도선진화 방안
3. [학술대회논문] - 박귀천 / 2005 / 경영해고에 있어서 근로자의 부제소에 대한 보상금 지급과 사회적 계획(Sozialplan)의 관계 / 국제노동브리프 3 (1) : 94 ~ 99
4. [학술지(정기간행물)] - 박지순 / 2004 / 독일의 노동시장 및 노동법개혁 / 노동법학 (18) : 291 ~ 330
5. [학술지(정기간행물)] - 이 정 / 2001 / 부당해고에 대한 사법구제 및 법적 효력 / 노동법학 (13) : 39 ~ 68
2. [단행본] - 노사관계제도선진화연구회 / 2003 / 노사관계법․제도선진화 방안
3. [학술대회논문] - 박귀천 / 2005 / 경영해고에 있어서 근로자의 부제소에 대한 보상금 지급과 사회적 계획(Sozialplan)의 관계 / 국제노동브리프 3 (1) : 94 ~ 99
4. [학술지(정기간행물)] - 박지순 / 2004 / 독일의 노동시장 및 노동법개혁 / 노동법학 (18) : 291 ~ 330
5. [학술지(정기간행물)] - 이 정 / 2001 / 부당해고에 대한 사법구제 및 법적 효력 / 노동법학 (13) : 39 ~ 68
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UCI(KEPA) : I410-ECN-0101-2013-360-001538918