통상임금제의 근본문제 및 포괄적 해결방안 검토
분야
사회과학 > 법학
저자
이선신 ( Seon Sin Lee )
발행기관
안암법학회
간행물정보
안암법학 2013년, 제42권 399~461페이지(총63페이지)
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22001660.pdf [무료 PDF 뷰어 다운로드]
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    These days, in Korea, there have been big controversies over the Ordinary Wage in the LABOR STANDARDS ACT. In fact, the problems of the Ordinary Wage had been included in the LABOR STANDARDS ACT since the Act was legislated after the model of Japanese LABOR STANDARDS ACT. And, despite of much efforts of the Judiciary and the Government officials and many legal scholars, the problems are not resolved yet and many law-suits have been filed and much legal arguments have developed into serious Labor-Management Disputes. Recently, Korean Government(the Ministry of Employment and Labor) has launched a committee which will deal with the agenda of the Improvement of Wage Institution. In this thseis, I`ve reviewed the fundamental problems of the Ordinary Wage and discovered several critical legal deffects in the LABOR STANDARDS ACT by way of comparing with the related articles in the Japanese LABOR STANDARDS ACT. For example, the Korean Act has the article about the definition of Ordinay Wage which was stipulated with several abstact and ambiguous concept-factors like "periodicity", "uniformity", etc. Besides, I`ve found that several abstact and ambiguous concept-factors like "periodicity", "uniformity", etc. have irrational points which are inappropriate to be used for building the definition-article of Ordinay Wage. For reference, the ENFORCEMENT DECREE OF THE LABOR STANDARDS ACT stipulates Article 6 as belows; Article 6 (Ordinary Wages) (1) For the purposes of the Act and this Decree, the term “ordinary wages” means hourly wages, daily wages, weekly wages, monthly wages, or contract wages which are determined to be paid periodically or in lump sum to a worker for his/her prescribed work or whole work. (2) In case of calculating ordinary wages under paragraph(1) at hourly rates, the amount shall be calculated pursuant to the following subparagraphs: 1. - 7. (omitted) (3) In case of calculating ordinary wages under paragraph(1) at daily rates, the ordinary wages shall be calculated by multiplying the number of contractual working hours per day by hourly wage rates prescribed in paragraph (2). And I`ve reviewed three best possible solutions for resolving the Fundamental Problems of the Ordinary Wage, and I`ve proposed that the Ordinary Wage System in the Act should be abrogated and a new alternative Criteria-Wage System should be entrusted with the Labor- Management Autonomy System as the Comprehensive Solution of the Ordinary Wage Problems. And after reviewing the Ordinary Wage System from the viewpoint of ``the essencial nature of wage,`` I`ve pointed out that the Ordinary Wage System is inharmonious(incompatible) with ``the theory of the compensation for the labor-management relation``. In the previous theses, I`ve proposed a new viewpoint about ``the essencial nature of wage.`` After reviewing the traditional theories about the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics), I`ve proposed ``a theory of the compensation for the labor-management relation``, as my unique opinion, and that is a viewpoint, through which, perceiving the essencial nature of the wage as ``the compensation for the continuation of labor-management relation``. In conclusion, I`ve re-emphasized that the Comprehensive Solution which comprises the abolition of the Ordinary Wage System and the acceptance of the new alternative Criteria-Wage System prefering Labor-Management Autonomy should be adopted to resolve the Fundamental Problems of the Ordinary Wage.
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