중국 국제사법상 근로계약의 준거법에 관한 연구 - 한중 근로계약 분쟁의 해결에 주는 시사점을 포함하여 -

In a modern society where globalization is progressing at a rapid pace, companies and workers are no longer restricted by territorial limits in the name of the country. This phenomenon is especially noticeable between China and South Korea, which are　 geographically close and have active human and material exchanges. In the process, numerous international employment contracts are being concluded. If disputes over them are contested in Chinese courts, the issue of the governing law of employment contracts in Chinese private international law could be raised. This paper conducts a study on this topic in the following order. Section II explores the way to interpret the special provisions of the governing law of employment contracts stipulated in Article 43 of “Act on the Application of Laws over Foreign-related Civil Relationship”(hereinafter, “Act on the Application of Laws”) Specifically, on the basis of reviewing if party autonomy is allowed, this article deals with the interpretation of terms and some problems could be raised during the practice. Section III explores the meaning of mandatory provision in Article 4 of “Act on the Application of Laws”. Specifically, after clarifying that it means “overriding mandatory rules” which is always called “directly applicable law” under Chinese law, the article sets up a standard for determining which regulations on employee protection falls into this category, and analyzes more deeply by substituting them into some specific regulations. Section IV introduces some Chinese judgments involving South Korean parties and summarizes the enlightenment to resolve employment disputes between China and South Korea given by the above discussion.