노동판례에서의 기대권법리 적용에 관한 검토

If the employee has explicitly agreed with his employer to work for a fixed period, the contract ends automatically by operation of law when the contract reaches the agreed time. So, within the frame of the fixed-term contract, there’s no guarantee this contract will be renewed or converted into a permanent one. To protect the temporary workers therefor court have established a precedent in which the employee is entitled in certain cases to renew his contract or convert his contract into a permanent. As this cases, the court refers to the two Situations. First, the employee can renew or convert his contract when the right of renewal or right of converting to permanent is stipulated in the contract or written in the employment rules or collective agreements, etc. Second, the employee can ask the same right even though there are no such contract, rules, and agreement, provided the employee’s specific reliance on the continuing or converting is established. Whether this Expectation is grounded, is decided by the court considering the circumstances surrounding the labor relationship being discussed. This court decision is called ‘Breach of trust related to renewal and conversion of the fixed-term labor contract’ and widely supported by the literature to protect the less favorable contractual position of fixed-term employees than permanent. However, a close look at the decision reveals severe logical inconsistencies. First, the court does not clearly distinguish the first situation from the second in its ruling. Especially, the cases, by which the employee’s right to extend his contract is explicitly stipulated, must be separated from the cases, by which the employer merely mentioned the possibility of renewal in the terms of contract. Second, to decline an extension of the contract does not directly mean that the employer dismisses the employee unfairly. The contract can be renewed or converted in a permanent only when the behavior of employer has caused a reasonable reliance of employee on continued employment or changed time-condition. Even in this case, the contract ends automatically on the agreed date. The employee has only the right to extend the contract or to convert the contract into a permanent. Only after his request is accepted by the employer, the unfair dismissal can be discussed. Otherwise, the employer is only liable for the damages. To make this court decision more reasonable, the court needs to put emphasis on the basic rules of contract. The contract ends automati- cally by operation of law at the agreed time, if the both parties have agreed on the term of a contract. The intention of both parties to establish a legal relationship is essential for the renewal or conversion of the contract. From the reasonable expectation of one party only the right to renew and convert the contract can be granted. The need to protect the fixed-term employee should not change the basic framework of contract improperly. A court decision based on the basic principle of contract law is also necessary in the employment cases.