기간제근로자에 대한 갱신기대권 법리의 적용에 관한 법적 검토

Currently in Korea, temporary workers are widely utilized for various reasons, and occupy a significant amount of the work force. For the purpose of protecting temporary workers, courts have been known to develop and apply the doctrine of regarding unlimited temporary workers as permanent workers (hereinafter the “doctrine of permanency”) or the doctrine of right to renewal (hereinafter the “doctrine of right to renewal”) of temporary workers until the Act on the Protection, Etc. of Fixed-Term and Part-Time Workers of Korea (hereinafter the “PTW Protection Act”) was enacted on 1 July, 2007. However, with the establishment of the PTW Protection Act and its effect (in which case if the working period exceeds two (2) years, the worker will be deemed to be a permanent worker), controversy has arisen regarding whether the two court doctrines can still validly be applied in related cases. Even under the PTW Protection Act, there are special circumstances under which the working period set forth may be construed as merely superficial, in which case the doctrine of permanency still has a place in court. Nonetheless, after the enactment of the PTW Protection Act, any employment agreement entered into hereafter would be subject to the PTW Protection Act, lowering the probability of any existence of such special circumstances whereby a working period set forth may be construed as merely superficial. On the other hand, the query as to whether the doctrine of right to renewal would have any standing with employment agreement entered into after the establishment of the PTW Protection Act has been somewhat answered after a recent Supreme Court decision held that the doctrine of right to renewal is still applicable to new employment agreements. Considering the purpose of legislation of the PTW Protection Act which includes the prevention of the employers’ abuse of temporary worker employment agreements and the protection of temporary workers through stabilizing their status as workers, the Supreme Courts’ decision is sound and agreeable. Yet, I think with the establishment of the PTW Protection Act, courts need to construct their opinion in accordance with the changes in the legal environment, which is the existence of the PTW Protection Act. Precedents of the doctrine of right to renewal require two (2) factors at most: (1) whether the relevant laws and regulations provide such special rights or whether the employment agreement, rules of employment, collective agreement, etc. provide the basis for renewal of contract or provide the procedures and causes for renewal; or (2) in consideration of the circumstances surrounding the employment agreement in question, confidence has been established between the parties if certain factors are met and the employee has just reason to believe that the contract would be renewed. In case of factor (1), the need to maintain the doctrine of right to renewal remains because such right to renewal has been incorporated in to the employment agreement per mutual agreement by both parties. On the contrary, in case of factor (2), the establishment of the PTW Protection Act becomes a major component to take into consideration, and as the application of the doctrine of right to renewal will have significant legal effect, the doctrine of right to renewal would be have to be reconsidered case-by-case. From this perspective, the best method would be to make the appropriate changes through legislative amendments. Regarding the case in which the trial period for the worker was two (2) years under the employment agreement, the Supreme Court right held that the worker had the right to renewal to be a permanent worker. Even so, the court should have considered the issue of whether utilizing the temporary employment agreement as a prolonged trial period is justifiable and appropriate. I think, two (2) years as a trial period is excessively long, and as the PTW Protection Act was not introduced in order to justify any prolonging of the trial period or render the principle regarding the trial period meaningless, any period exceeding the appropriate trial period shall be deemed null and void. Therefore in this instance, even though the employer did not explicitly reject hiring the employee but prolonged the trial period, the court, rather than applying the doctrine of right to renewalㆍright to transition, should have granted the employee with a permanent worker status under the principle of the trial period. Nevertheless, the fact that this particular issue has not been deliberated on or decided on remains to be examined.