징계 아닌 인사처분으로서의 강등의 법적 성질에 관한 시론적 검토

The demotion, which is not a disciplinary action but a regular personnel action, was not sufficiently considered in the field of labor law. Even if demotion is not disciplinary action, various disadvantages follow, including a reduction of income, loss of personal reputation. Recently, employers have increasingly disguised a disciplinary action as a regular personnel action, in order to avoid the application of disciplinary procedures and examination standards that are strictly prescribed by law. However, the Labor Relations Commission and the Courts still do not distinguish between disciplinary demotion and normal personnel demotion. In order to determine whether a employer’s decision of demotion is a disciplinary or normal personnel action, the purpose and necessity of the employer’s decision should first be considered. If the purpose and necessity of the decision of demotion can not be clearly determined, additional considerations are needed, such as the basis and practice of the personnel action, the content of the measure, whether the demotion is permanent, objective signs in the negotiation procedure, and the existence of business practices. Even if a demotion is not a disciplinary action, demotion as a personnel measure must have justifiable reason in accordance with article 23 of the Labor Standards Act. Whether or not a personnel action is justified is determined by comprehensively considering the business needs, disadvantages of workers, and compliance with negotiation procedures.