휴업수당 제도의 비교법적 검토 ― 독일, 일본, 우리나라를 중심으로 ―

According to the principle of employment contracts, if a worker does not provide labor even though an employment contract has been concluded between the employer and the worker, the worker cannot claim wages for providing labor from the employer (Article 655 of the Civil Act). If a worker's contract default occurs without the responsibility of both labor and management, and the worker cannot claim wages, he or she will inevitably experience difficulties in making a living. In Germany, Japan, and Korea, workers have been forced to pay wages or shutdown allowances to ensure their livelihood in the event of a business failure (shutdown) that occurs without the responsibility of both labor and management. In the past, in Germany, through theories and precedents, there was discussion about expanding civil law provisions or applying general principles of labor law to impose wage payment obligations on employers in cases where management difficulties occur due to the loss of a factory, interruption of energy supply, shortage of raw materials, or administrative orders. Recently, Article 615 of the German Civil Code clearly stipulated the employer's obligation to pay wages in case of management failure. On the other hand, in Japan, Article 26 of the Labor Standards Act stipulates that if a shutdown occurs due to reasons attributable to the employer, a shutdown allowance equivalent to 60/100 of the average wage must be paid to ensure the worker's minimum living. This regulation allows employers to pay suspension allowance even in cases where business failures cannot be attributed to the employer under civil law. In Korea, if an employee fails to provide labor due to no responsibility of both labor and management, the labor and labor laws are interpreted so that wages can be claimed from the employer through Article 538, Paragraph 1, 1st sentence of the Civil Act or Article 538, Paragraph 1, 2nd sentence of the Civil Act. There have been conflicting views on applying the provisions of Article 46 of the Standard Act on suspension of business due to reasons attributable to the employer to pay suspension allowance. The current conventional wisdom and precedents believe that Article 538 of the Civil Code and Article 46 of the Labor Standards Act are in a competitive relationship. In Germany and Japan, if a work stoppage occurs due to force majeure, the employer is not obligated to pay wages or leave allowances. Currently, the prevailing view in Korea is that there is no obligation to pay wages and closure allowances if a suspension of business occurs due to force majeure. However, there is criticism that the scope of interpretation of ‘force majeure’, which is excluded from the reasons attributable to the employer in Article 46, Paragraph 1 of Korea's Labor Standards Act, is unclear, and as a result, criminal liability is imposed as a reason for not paying leave allowance. If so, it also violates the principles of legality and clarity. Meanwhile, in Korea, Article 46, Paragraph 2 of the Labor Standards Act, independently stipulates a system for reducing the leave allowance that allows some or all of the obligation to pay stoppage allowance to be reasonably adjusted. Therefore, the concept of business suspension and the interpretation of the scope of the employer's obligation to pay suspension allowances also need to be changed to suit our country's reality. In other words, I think that it is necessary to interpret the suspension of work due to reasons attributable to the employer as defined in Article 46, Paragraph 1 of the Labor Standards Act to include suspension of work due to force majeure as well as the neutral area of both labor and management as a suspension that occurred against the will of the worker. The suspension system under Article 46 of the Labor Standards Act is not a system that unilaterally imposes wage responsibilities on the employer to protect workers during the period. Rather, labor and management share the risk of payment during the suspension from a community perspective in order to maintain the labor contract between labor and management in the event of a management crisis. It is a period of time. If we understand it this way, we will be able to focus more on the essence of the shutdown allowance system rather than being caught up in a situation of labor-management conflict due to the current situation of criminal punishment for violating the shutdown allowance system.