부당해고의 사법적 구제와 관련한 새로운 입론

The Labor Standards Act has several clauses related to unfair dismissals, however, most of the clauses are connected to unfair dismissal relief application to the labor board. Relieves through civil litigation, which is deemed to be basic and more fundamental relief method are still entrusted to the construction of courts. The characteristics of korean judicial remedies are simplicity and rigidity. Under the Korean system, discharge without just cause is illegal and therefore, shall have no effect. Wrongfully discharged employees usually are limited to a request for the affirmation of the nullity of the discharge and for the unpaid wages during the discharged period, whereas the award of damages for emotional distress is recognized only in exceptional tort cases. Unfair dismissals are diverse from malicious intentional dismissals in which employers manipulate the reasons to expel employees from work place to simply procedural violation dismissals. It is unreasonable to nullify all kinds of dismissals and to give basically same remedies for them. Unreasonable remedies by above mentioned rigid methods make many problems. Therefore we have to establish new theories to enable reasonable remedies in individual cases. In cases where the employer's conduct is malicious, outrageous, or highly reckless, the payment of unpaid wages alone is not enough. In such a case, it is needed to introduce the conception of punitive damage and to recognize big amount of damages for mental distress. In cases where the maintenance of relationship is essential, it is more desirable not only to affirm the nullity of wrongful discharge but to order specified actions. On the other hand, even in cases where dismissals have no just cause, it is more desirable to end the employment relationship and to compensate the employees for damages based on tort theory if the dismissals are not directly contradict against social order or severe hostility exists between the employees and the employer.