판례상 교육훈련비 반환약정의 유효성 검토

This article examines a lower court's case on a dispute over an airline pilot's Training Cost Repayment Agreement. Pilots' training cases become the object of disputes mainly because the training costs billions won(KRW) and the length of mandatory work is set for a considerably long period. The legal issue in this case is whether it is a Predetermination of Penalty (for Breach of Contracts), if the repayment agreement imposes the whole of training cost on the employee when the training works to benefit the employer as well as the employee. This article suggests that the lower court's decision does not comply with the intent of the Supreme Court's case that the repayment agreement that oblige employee to pay for 'the training expenses that the employer should bear for his/her business needs and interests' is Predetermination of Penalty. In addition, this article points out that in the case, it only reduces the repayable amount from within the range of the amount that is actually the employee's wage or from the amount appropriated higher than the actual training expenses, and does not let the two parties share the cost or reduce/adjust the mandatory work period or the repayment cost, and let the employee return the whole of the training cost. The employee, as a beneficiary of the training, can be responsible for a part of the training cost. However, if the employee is obliged to pay for the cost that needs to be borne by the employer by nature, s/he is forced to pay for the money that s/he is not responsible, and thus it consists Predetermination of Penalty. Given the absence of minimum legislative arrangements, (such as a ceiling for mandatory work period, a mandatory work period corresponding to the duration of the training period, prohibition on repayment of double the actual cost, and pro-rated based amount upon the total time worked), it is necessary for the court to apply Partial Nullity of Juristic Act and actively adjust mandatory work period or reduce the balance of the training debt. Our court, however, is very passive in doing so. Unless the training is given according to 100% free will of the employee, the training is largely done to fulfill the needs of the business, and thus the cost of the training should be borne by the employer in principle. In addition, when the repayment agreement serves as a prerequisite for the recruitment, as in the case of the tentative recruitment candidate, it is necessary to further limit the range of effectiveness of the Training Cost Repayment Agreement, considering the candidate's inferior bargaining power against the employer.