회생·파산절차시 해고와 경영상 해고

Looking into court rulings that address the right to dismiss employees in the process of corporate rehabilitation or bankruptcy under the Debtor Rehabilitation and Bankruptcy Act (hereinafter “DRBA”), courts find such termination of employment to constitute ordinary dismissal according to Article 23 of the Labor Standards Act (hereinafter “LSA”) or the right to terminate outstanding bilateral contracts under the DRBA. However, it appears that courts have not seen the dismissal of employees in the process of corporate rehabilitation or bankruptcy as dismissal for managerial reasons under Article 24 of the LSA (i.e., layoff). In such cases, as the application of regulations limiting the dismissal of employees under the LSA, which are aimed at protecting the right-to-work of employees conditioned on the continuation and maintenance of the employment relationship, is ruled out, it could be difficult to prevent dismissals initiated by an employer solely based on his/her arbitrary decision. However, in accordance with the fundamental legal principle that employer’s managerial right and employee’s legal right of labor, both of which have been established under the Constitution, should be adjusted to strike a balance between mutual interests in a harmonious manner, the LSA should take precedence over the employer’s right to terminate an employment agreement that is based on the right to terminate outstanding bilateral contracts under the DRBA in the process of corporate rehabilitation or bankruptcy. That is, as the dismissal of employees in the process of corporate rehabilitation or bankruptcy is not attributable to the employees concerned, but is triggered by managerial reasons, it seems necessary to satisfy the requirements of justification under Article 24 of the LSA, when taking into account the extent of limiting the dismissal for managerial reasons under the said provision aimed at protecting the legal right of labor under the Constitution. However, even if it is legally allowed to see the dismissal of employees in the process of corporate rehabilitation or bankruptcy as the dismissal for managerial reasons, it still appears more reasonable to define the “urgent business necessity” requirement, which is one of the requirements for dismissal for managerial reasons, as the “urgent necessity to take certain management measures to solve managerial circumstances that have occurred within or outside the company” in line with the recent court ruling (Supreme Court Decision No. 2010Da3629 rendered on February 23, 2012.), as well as the “objective and reasonable necessity to reduce headcount” that has been witnessed in the past court rulings. Based on such interpretation of the “urgent business necessity” requirement, it would be possible to see the dismissal of redundant workforce to be inevitably carried out as part of efforts to solve managerial difficulties as the dismissal for managerial reasons, which seems to better serve the purpose of protecting employee’s legal right of labor based on employment relationship. With respect to the issue whether the provisions of consent or agreement on dismissal executed between labor and management should apply to the dismissal of employees in the process of corporate rehabilitation or bankruptcy, in case the employer executed with the union a job security agreement limiting the dismissal for managerial reasons according to his/her own managerial decision, the provisions of the job security agreement, addressing the working conditions and treatment of employees, constitutes a normative aspect of the collective bargaining agreement, which therefore should be deemed effective unless there exists abuse of agreed rights judged based on the principle of good faith and sincerity or other unjustifiable circumstances in light of the theory of changed circumstances. It is a matter of course that the dismissal of employees in the process of corporate rehabilitation or bankruptcy should be subject to restrictions on dismissal for managerial reasons set forth in the LSA. Nevertheless, if a bankrupt company doomed to be closed down is requested to strictly satisfy the requirements for dismissal for managerial reasons under the LSA, it might be deemed an excessive infringement on employer’s managerial right. Therefore, it would be necessary to undertake a legislative review with the objective of easing the requirements for dismissal for managerial reasons in that regard.