근로기준법 제46조 사용자의 귀책사유로 인한 휴업의 개념과 유사 제도

Due to the pandemic caused by COVID-19, there have been many situations in which both labor and management were unable to fulfill previously concluded labor contracts. As a result, the system of shutdown due to reasons attributable to employers under Article 46 of the Labor Standards Act was frequently used. Article 46 of the Labor Standards Act stipulates that in the case of a 'suspension of business due to reasons attributable to the employer', it is compulsory to pay at least 70/100 of the average wage or ordinary wage, and the concept and specific scope of the suspension are not specified. Conventional theory and precedents interpret 'closure due to reasons attributable to the employer' as meaning 'suspension that occurred not only intentionally or through negligence on the part of the employer but also within the scope of control and management' and excluding reasons for force majeure. However, Article 109 of the Labor Standards Act stipulates that criminal punishment is imposed in the case of non-payment of suspensionallowance by the employer, so it is necessary to clarify the scope of the business suspension due to reasons attributable to the employer. Since Korea's labor-related laws use the term " business suspension" instead of vacation or leave, it is necessary to distinguish between a broad sense of leave and business suspension in Article 46 of the Labor Standards Act. Compared to other systems such as leave of absence, and reduction of working hours, business suspension due to reasons attributable to the employer occurs against the individual worker's will. In addition, it is different from a leave of absence caused by a worker's cause, which is pre-determined in the employment rules between the employer and the worker. Business suspension refers to the resultant state in which an individual worker is refused or unable to provide work against his or her will without any fault attributable to the individual worker despite the intention to provide work in accordance. Therefore, it refers to cases that occur the employer's intention or negligence and the event that both the employer and the worker occur without any cause attributable to the Civil Act. In order to appropriately limit the scope of the employer's responsibility for payment of shutdown allowances in the case of a shutdown that occurred outside the controllable scope of the employer, the majority theory and precedents exclude force majeure reasons from the business suspension. However, in Korea, there is a system for reducing the shutdown allowance in Article 46, Paragraph 2 of the Labor Standards Act, so the scope of the employer's responsibility for the shutdown allowance can be adjusted. Therefore, business suspension due to reasons attributable to the employer in Article 46, Paragraph 1 of the Labor Standards Act should be interpreted as a case where the worker is not attributable under the Civil Act, and confusion in application in reality should be prevented. In addition, criminal responsibility for non-payment of shutdown allowances must be interpreted so as not to go against the principle of criminal clarity. Through the definition of the concept of business suspension, it is hoped that the suspension of work can faithfully play its original role as a system that interprets the legal relationship in the state of business suspension contracts unexpected by both parties.