기간제 근로계약의 해지에 관한 소고 ― 근로자의 사직과 민법 제661조의 부득이한 사유를 중심으로 ―

While Korean labor law strongly restricts the unilateral termination of fixed-term employment by an employer, it remains silent to fixed-term employee’s right to terminate the employment contract (i.e. resignation). Faced with such a silence, interpretations should be derived from the underlying principles of the contract law provided in the Korean Civil Code. Article 661 of Civil Code prescribes “Even where a fixed period for the employment has been set by the parties, either party may, if any unavoidable cause arises, terminate the contract for the future: Provided, That if such cause arises out of the negligence of one of the parties, such party is liable for damages to the other party.” The clause clearly states that both parties of the fixed-term employment hold the right to terminate only when there arises an ‘Unavoidable Cause.’ However, some theories assert Article 661 should not apply when it comes to the fixed-term employee’s right to terminate in the middle of the employment period since such narrow recognition of fixed-term employee’s right to terminate violates the Labor Standards Act Article 7: Prohibition of Forced Labor. However, given that Article 7 was legislated to protect employees from forced labor through the means that unduly restricts the freedom of employees, such as violence or intimidation, it is highly doubtful that it could work as a ground to provide fixed-term employees with the right to terminate the contract. Although it is widely perceived that fixed-term employees should be able to unilaterally terminate the employment contract like permanent employees, it should not be ignored that the legislators have also focused on the importance of maintaining the employment contract by restricting the right to terminate to a certain degree.