근로계약의 취소와 소급효의 제한

A labor contract would be concluded by a declaration of intention of a worker and employer. However, it is not fair to enforce the execution of such a labor contract when a defect occurs in the process of forming an intention about the conclusion of a labor contract by deceiving an employer in such a way that workers make false statements of their careers. In this case, the employer needs a way out of the binding power of the labor contract. In Korea, such problems were mainly problematic in terms of the justification of dismissal but it was also pointed out as a matter of voidance of a juristic act in terms of the remedy regarding the defects in the formation of employer's intention at the point of conclusion of the labor contract. The Supreme Court recently confirmed that labor relation can be canceled on the basis of fraud because workers falsely stated their careers on their resume. In addition, they judged that voidance of such labor contracts would be in effect only for future from the point of the exercise of a right of voidance. That is civil law provisions which acknowledge the retroactive effect of voidance does not apply to the labor contract. Considering the continuing nature of the labor contract, the Supreme Court's judgment restricting the retroactive effect of the labor contract is reasonable. However, in the case of voidance of a labor contract, it is necessary to review whether it can exclude the application of the civil law which recognizes the retroactive effect of voidance of a juristic act. It should also be considered whether the voidance of the labor contract should be uniformly limited in all cases or what limits exist to the retroactive effect. If the necessity of protection for workers is considered as the basis for limiting the retroactive effect of voidance of a labor contract, the voidance of retroactive effect of Civil Law may be more appropriate in cases where the need for protection of workers is not substantial.