기간제근로자의 고용종료를 보호하기 위한 판례 법리

This article examined the case law formed to protect the termination of employment of fixed-term employees after the Supreme Court’s All-collegial Decision in 1996, and the core of which is to apply the legal principles of dismissal restriction to the termination of employment of fixed-term employees. Art. 23 ① and Art. 28 of the Labor Standards Act is applied by analogy because termination of employment relationship due to the employer’s refusal to renew, despite the trust that the employee will continue to be employed, is essentially the same as ‘dismissal’. These case law is Law-Forming action(Rechtsfortbildung) through the method of analogy. The case law related to the interests of remedy are intended to protect fixed-term employees from unfair termination of employment, such as unfair dismissal by the employer during the employment contract period. Legal principles on virtually non-fixed term employment contract and expectations right is the case law to protect the employment relationship of fixed-term employees from the termination of employment due to the expiration of the employment contract period or the change of outsourcing company. It can be evaluated that the former legal principle has continued to expand the possibility of employment while being combined with the latter legal principle of expectations right. Supreme Court’s All-collegial Decision 2019Du52386, decided February 20, 2020 is of great significance in that it paved the way for the practical operation of the dismissal restriction legal principle for dismissal during the employment contract period, and it was the background to the legislation of Art. 30 ④ of the LSA. With this legislation, it can be seen that it has now moved from the area of law-forming action by judges to the area of law-finding. However, the recent Supreme Court precedent seems to contradict this provision. The legal principles on virtually non-fixed term employment contract is of great significance in that it played a role in the absence of a protective device for the termination of employment of fixed-term employees, and provided the basis for the birth of expectations right. On the other hand, there is a limit to the Judge’s interpretation of denying the explicit contents of the employment contract(employment contract period), which is the source of law(Rechtsquelle). The right to expect renewal has been expanded to include the right to expect conversion to regular employment, and even the right to expect employment succession when changing outsourcing companies, and has achieved a certain level of completeness in terms of appearance. However, considering that the legal principles regarding the criteria for judging, judgment elements, and rational reasons, etc. for individual expectation rights still require ‘Forming’. And considering that the area where judges’ Law-Forming action is most dynamic is the area related to labor law, especially non-regular workers, it is expected that case law will be born as a new ‘Forming’ in the future.