중국의 노동계약법상 업무능력결여에 대한 해고의 제한

In Korea, the dismissal of low-performing workers has emerged as a social issue, and since 2021, the Supreme Court has been presenting legal principles to determine the legitimacy of dismissal due to low work ability. In China, the so-called ‘low-performing elimination system’ has also emerged as a social issue, and the Labor Contract Act regulates dismissal due to lack of work ability. In other words, if a worker cannot perform his/her job properly, has undergone training or job adjustment, and is still unable to perform his/her job properly, he/she can be dismissed. This article examines the interpretation of the discussions in China regarding the judgment of lack of work ability and education/training and job adjustment as measures to avoid dismissal. The dismissal due to lack of work ability in China and in Korea show the following legal similarities in their approaches and contents. First, the level required for the judgment of the legitimacy of dismissal due to lack of work ability is similar. Second, the specific disciplinary contents regarding lack of work ability are similar. Third, lack of work ability is similar in that it emphasizes objective evaluation results. In addition, the following implications can be drawn from the review of discussions in China, in terms of the development of interpretation theories in Korea. First, it is necessary to develop an interpretation theory that emphasizes more that the fundamental reason for dismissal is that the employee is unable to perform his/her job due to poor work performance or work ability. Second, in determining the legitimacy of dismissal, the circumstances of whether the employer provided opportunities to improve work performance or work ability, such as training or reassignment, must be considered as important. Third, it should be considered that the judgment of the legitimacy of the measure in transferring an employee may be somewhat different from the judgment of the legitimacy of general transferring an employee.