사용자 지시권의 내재적 한계와 제한의 결정원리

In employment relations, the employer's directions should be based on employment contracts. Even though employment contracts are valid between the employee and the employer, the directions have a legal limit. Employer's directions should be regulated by general legal principles, such as fairness and good faith. Thus, I intend to explore the legal base, internal restrictions and legal principles in relation to the employer's directions in this dissertation. Employer's directions cannot be directly inferred from employment relations nor from social positions, but rather are based on employment contract as contract rights. As the employee and the employer make the contract, the employer could have the authority to direct the employee's work and the employee should have the obligation to follow the directions. Consequently, the employer's directions can unilaterally determine the contractual contents of an employee's duty to work at one's own discretion as a part of the responsibilities of the employee. Because it is a discretionary power against the employee in employment relations, the employers' directions need essentially to be limited on justice. Above all, the employer's directions could be limited to equality in power to specify the terms of the employment contract, the employees' self-determination and equal treatments in employment conditions. Furthermore, it should be under the control of constitutional rights, legislations, collective agreement, workplace rules, employment contracts and industrial practices. One needs to consider three stages when looking at the limit of the employer's directions. First, it explores the mind of both parties by the interpretation of the employment contract. If the implicit and explicit agreements can be certified, the employer's directions should be excluded in employment relations. Second, it compares the employer's interest with the employee's interest on the contents of employer's directions. If employer's directions have the potential to violate the objective and common interest of the employee, the directions should be legally denied. Third, the principle of fairness and good faith can be applied in exercising the directions. It needs to compare the management necessities of the company from the position of the employer with the employee's disadvantages in the workplace and also the personal losses of their family life as specific as possible.