국제근로계약의 준거법에 대한 비판적 검토

Labor policy has the most immediate impact on labor markets. With mobility ofworkers, postings abroad and globalization in general it is time to examine the law applicable tocontractual obligations in international employment relationships. The Korean Private InternationalLaw has provisions regarding the objective connection of the employment contract. They have adouble function. First, they determine the applicable law when the parties have failed to choose it. Second, mandatory provisions favoring the employee are applicable despite a choice of law. Theycontain two connections to be applied alternatively in order: the connection to the country wherethe work is habitually carried out and the connection to the country where the place of businessthrough which the employee was engaged is situated. In light of the rationale of the KoreanPrivate International Law a broad interpretation should be given to the phrase “country where theemployee habitually carries out his work.” In particular the broad interpretation should be given tointernational carriage relationships rather than easily referring to the connection to the countrywhere the place of business through which the employee was engaged is situated. In this regard the so-called ‘base rule’, enshrining a modified version of habitual working place, could play a keyrole in avoiding the second-tier connecting factor which leans to the employer’s favor. This wouldprovide a reasonable balance to be struck between the interests. If and to the extent that theinterpretation allows it, the broad interpretation approach should be introduced even prior to therevisit of the Korean Private International Law.