노동관행의 성립과 효력에 관한 연구:대법원 판례를 중심으로

In the workplace, explicit regulations such as collective agreements, employment rules, and labor contracts alone have limitations in governing all labor-management relations. The role of so-called labor practices is to substantially fill the gaps in these regulations. Labor practices are formed when actions not explicitly regulated or conflicting with explicit regulations repeated over a considerable period without objection between labor and management. They function as substantive rules in labor-management relations and hold significant normative meaning. The Supreme Court of Korea generally requires support based on a ‘normative consciousness’ for the establishment of labor practices, viewing their scope more narrowly than the German Federal Labor Court. However, this appears to be an adoption of the mainstream view in Japanese case law rather than an independent legal principle of the Supreme Court. Furthermore, the Supreme Court has failed to establish consistent criteria for judging labor practices. Even when applying the same criteria, it reaches differing conclusions in different cases, significantly undermining legal stability and predictability. Consequently, there is a pressing need for the Supreme Court to present clearer and more consistent criteria in the future. Particularly considering the importance of labor practices, which occur extensively in the workplace, there is no need to narrowly limit the establishment of labor practices based on the strict requirement of a sense of normativity. Instead, the Supreme Court should recognize the establishment of labor practices more broadly, based on the reliance liability, as it has also stated in some precedents.