연차휴가제도의 보상적 성격에 관한 비판적 검토

Annual Holidays is paid time off granted by employers for rest of employees. Most countries around the world have the provisions in Labour Law to mandate that employers give a certain number of paid leaves per year to employees regardless of employment status. On the contrary, in Korea the Employment Standards Act(ESA) section 60 provides requirement for acquisition on annual holidays based on absence ratio in employment. This legislative form is different from international labour standard and EU directive as well as other countries. In this difference, we can find that annual holidays system in Korea have unique characteristic, so called “Compensative Characteristic of Annual Holidays” In this article, I try to resolve a few questions relating to the characteristic, why it is built, what it is aiming at, whether it is valid in the legal system to regulate employment relations, and so on. The first method for this purpose is to systematise the rest periods system in ESA and to confirm the compensative characteristic of similar concepts such as weekly rest. The next step is reviewing the history of related articles in ESA and finding the legislative trends about it. The Last and the most important thing is to make an interpretation relating to provisions of annual holidays, “once an employee worked for 80% of total working days of the first year, he is entitled to use 15 days’ annual leave during the next one year” and “Even if an employee has not completed his first year, he can use annual leave. In that case, he can use 1 day of leave if he had worked one full month.” These are intended to compensate for employment itself in a literal sense, but these are discriminating against non-standard workers or employees who exercise employment rights such as industrial action or leave of absence for maternity(or medical) reasons.