회사 분할 시 근로관계의 승계와 근로자의 거부권 - 대법원 2013. 12. 12. 선고, 2011두4282 판결 -

We did not have any legal provisions concerning succession of employment relationship in company split and there were not specific Supreme Court precedents regarding the above. So there were many kinds of views and opinions regarding whether employment relationship is succeeded by a universal title and employees can refuse their transfer to new company in company split. In this circumstance, recently the Korean Supreme Court ruled that company split is to be regarded as valid and employment relationship will be succeeded to new company, if splitted company give a sufficient explanation to the employees and labor union, despite employees’ opposition. The court’s decision is based on Article 530-10 of the Korean Commercial Code. But this Article is not for regulating transfer of employment relationship but for regulating claim-obligation relationship in company split. And then the court decided that employees can refuse their transfer of employment relationship to new company in exceptional circumstances. But employees have the right to refuse to be transferred in company split. The right is based on constitutional right of self determination and freedom of contract. Accordingly, the court’s decision that only in exceptional circumstances employees can refuse their transfer of employment relationship is to restrict freedom and rights of the employees. Besides, employees will be at a disadvantage in the burden of proof in legal procedures. As a result, for such reasons as mentioned above, the court’s decision would be controversial and challengeable in law and I have a doubt as to the reasoning of the court’s decision.