회사 분할에 따른 근로관계의 승계에 관한 법리

This paper aims to clarify new supreme court’s decision of the succession to employment contracts upon company split. In Korea, we did not have provisions that regulate transfer of employment contract in case of company split, where interpretations were to be needed about the effect of employment relations those were contracted between employee and transferor (company). Supreme court’s decision made a new rule about this. That is, if procedure of bona fide negotiation and explanation is to be fulfilled, then company split is to be regarded as valid, which means employment contracts will be succeeded to splitted company. Actually, the “procedure of bona fide negotiation and explanation” is not a familiar to present regulation. From this, we can refer to the recent case by Japanese supreme court (saiko-saibansho), which is based on the legislation(Act on the Succession to Labor Contracts upon Company Split, rodo keiyaku shoukeiho) about negotiation and explanation with the employee and labor union. There has been a significant debate on the effect of company split on the employee transfer, but the Supreme court’s decision can be a apparent declaration about multi possibilities of interpretation. This can lead to other questions concerning lay off, employment transfer at the time of company restructuring.