파산절차상 해고에 관한 판결의 부당성 -대상판결: 대법원 2004. 2. 27. 선고 2003두902 판결-

Dong A Construction Corporation was declared bankrupt by Seoul District Court on 11, May 2001. At thesame time, the bankruptcy administrator gave advance notice of dismissal on 15, May, the same year on theInternet bulletin board informing 32 employees including union leaders will be discharged as of 14, June thesame year. Complaining it was an unfair labor practices as the only union leaders were given dismissal notice, theyasked Seoul National Labor Relations Commission to investigation for unfair labor practices on 17 May thesame year. However, the council dismissed the petition saying it was a dismissal with justifiable reason andthere was no unfair labor practices on 19 July the same year. The complaints applied for a retrial to the Central Labor Relations Committee. Although it ruled that it wasunfair dismissal and unfair labor practices that they were deprived of the right to work even as assistants andoverruled the first trial, it also dismissed the petition for both the reinstatement and the payment they weresupposed to received. Later, the appeal was dismissed at the Seoul Administrative Court, Seoul High Court andthe Supreme Court. However, I can't accept the Supreme Court's Judgement as it failed to understand the legal nature ofdismissal in bankruptcy Proceedings. The general opinion in academic field is that the legal nature of dischargein bankruptcy proceedings subject to following: 1. Dismissal based on the Labor Standard Act, 2. Cancellationof contract due to mutually unfulfilled bilateral contract based on Debtor Rehabilitation Act, 3. The terminationof employment contract based on the Civil Law. The the Supreme Court's Judgement was made based on the rules for bilateral contract in old BankruptcyAct-the current Debtor Rehabilitation Act and the Civil Law, disregarding both mutually unfulfilled bilateralcontract in Debtor Rehabilitation Act and the employment contract in the Civil Law. The objective of labor lawis to specify the procedure of the fundamental labor rights and the extent of its application stated in theConstitution, while the Debtor Rehabilitation Act specifies special provisions that is required for companyrehabilitation. So, it does not serve its purpose to specify the extent of labor right application in the DebtorRehabilitation Act. Even though such provisions were to be enacted in the Debtor Rehabilitation, it would bethe labor law in an “extended” or "substential" meaning which does not meet the minimum standard of thelabor condition stated in the Labor Standard Act. This is the violation of the provision of Article 1 and 2 ofthe Labor Standard Act that states the minimum standard of working condition and the Constitutional HumanLiving Right.