재산의 분리·양도형 기업구조재편과 고용관계 변동에 관한 연구 - 회사분할과 영업양도를 중심으로 한 비교 검토 -

According to the law of survival of the fittest, a corporate must continue to reorganize and renew itself so as to survive in unlimited competition and rapidly changing market environment. However, employment disputes are likely to occur when the management restructures the corporate, especially restructures the corporate through the method of dividing and transferring the business. Furthermore, social conflicts are more likely to occur unless that labor disputes are resolved. Thus, in this paper, I researched on the aspect of changing the employment relationship and difference in demerger and business transfer that are called the representative types of the corporate restructuring by dividing and transferring the business and then I tried to focus a review on the basic cause of that matter and the improvement method of it. The main idea of this paper is as follows. (1) Business assets are changed simultaneously with corporate personality by demerger, but only business assets are changed by business transfer. Thus, the judicial precedent has ruled that an employee has the general right to object against transferring his(her) employment relationship to a third party(transferee) when the employer transfers the business(the employee belongs to) to the transferee, but that an employee does not have the general right to object against transferring his(her) employment relationship to a divided company when the original company is demerged. And the judicial precedent’s decision of whether some transferring is the business transfer or P&A(Purchase & Assumption) depends on maintaining the identity of the business. Therefore, first of all, deciding the standard of the basic business unit is more important. (2) It is considered that succession of employment must be ruled equally in the demerger and business transfer. To be specific, in the light of the liberty of contract and legal consistency of commercial law, it is more proper that succession of employment is ruled by statute outlining the principle of succession of employment in business transfer also applies in the demerger case like in the Japan or Germany.