국제적 근로관계에서의 주요 법적 쟁점에 관한 연구
- 주제(키워드) 국제적 근로관계 , 국제사법 , 재판관할 , 준거법 , 전적 , 전출 , 상시근로자 , 근로기준법 , 강행규정
- 발행기관 고려대학교 노동대학원
- 지도교수 박지순
- 발행년도 2025
- 학위수여년월 2025. 8
- 학위명 석사
- 학과 및 전공 노동대학원 노동법학과
- 원문페이지 75 p
- 실제URI http://www.dcollection.net/handler/korea/000000305549
- UCI I804:11009-000000305549
- DOI 10.23186/korea.000000305549.11009.0002540
- 본문언어 한국어
초록/요약
오늘날 다국적 기업의 확대와 노동시장의 국제화에 따라 국가 간 이동을 전제로 한 국제적 근로관계가 증가하고 있다. 이와 같은 환경 변화는 근로계약의 체결, 수행, 종료에 이르기까지 다양한 법적 쟁점을 야기하며, 특히 재판관할, 준거법, 전적·전출의 법적 효과, 사업장 범위 판단과 같은 핵심 쟁점들은 실무상 높은 불확실성을 동반하므로 기존 판례들을 검토함으로써 예측가능성을 확보할 필요가 있다. 본 논문은 국제적 근로관계에서 발생하는 주요 법적 쟁점을 중심으로, 해당 분야의 핵심 판례들을 분석하고 관련 해석론적 문제를 도출함으로써 쟁점별 판례의 경향을 정리하고자 하였다. 먼저 재판관할의 측면에서는 국제사법 개정으로 도입된 재판관할 규정의 실효성을 검토하였고, 준거법 결정과 관련해서는 묵시적 합의의 존부를 판단하는 실질적 요소가 무엇인지를 중점으로 검토하였다. 또한 전적·전출의 구분과 관련해서는 판례를 통해 근로관계의 계속성 판단 기준을 분석하였고, 상시 사용하는 근로자수 산정과 관련해서는 법인격 분리에 대한 형식적 접근의 문제와 실질적 통합성 요소의 필요성을 강조하였다. 본 연구는 국제적 근로계약의 해석과 적용에 있어 반복적으로 제기되는 법적 혼란과 판례간 불일치를 지적하고, 이를 바탕으로 근로자 보호와 법적 예측가능성 을 확보하기 위한 판례의 경향을 제시하고자 하였다.
more목차
(국문)초록······················································································································i
목차·····························································································································iii
제1장 서론···················································································································1
제1절 연구의 배경 및 필요성················································································1
제2절 연구의 목적···································································································2
제3절 연구 범위 및 구성························································································2
제2장 국제적 근로관계의 개념·················································································3
제1절 국제적 법률관계의 개념··············································································3
Ⅰ. 서·······················································································································3
Ⅱ. 학설···················································································································3
1. 일반적 개념을 인정하는 견해·······································································3
2. 일반적 개념을 인정하지 않는 견해······························································3
제2절 국제적 근로관계의 판단기준·······································································4
Ⅰ. 법률관계의 성질결정(Classification)···························································4
1. 법률관계 성질결정의 의의·············································································4
2. 학설···················································································································5
3. 근로관계의 판단기준······················································································7
4. 판례···················································································································8
Ⅱ. 외국과 관련된 요소·························································································9
1. 국제사법 적용대상으로서의 외국적 요소·····················································9
2. 학설···················································································································9
Ⅲ. 소결·················································································································11
제3장 국제적 근로관계의 주요 법적 쟁점별 판례 검토·····································12
제1절 국제재판관할합의························································································13
Ⅰ. 개관·················································································································13
1. 문제제기·········································································································13
2. 재판권과 국제재판관할················································································13
3. 국제재판관할의 분류······················································································14
Ⅱ. 국제재판관할합의·····························································································14
1. 국제재판관할합의의 개념···············································································14
2. 근로계약에 관한 소의 국제재판관할합의····················································16
3. 판례검토 (부산고등법원 2006. 7. 12. 선고 2005나12018 판결, 대법원
2006다53627 : 상고기각)···········································································17
제2절 준거법············································································································21
Ⅰ. 근로계약의 준거법 결정의 원칙····································································21
1. 문제제기···········································································································21
2. 당사자 자치의 제한························································································21
3. 일상적 노무제공지··························································································22
4. 예외조항···········································································································23
Ⅱ. 국제적 강행규정의 적용·················································································24
1. 국제적 강행규정의 개념················································································24
2. 국제적 강행규정의 판단기준에 관한 종래의 견해·····································25
Ⅲ. 판례검토············································································································26
1. 묵시적 합의를 인정한 판례···········································································26
2. 묵시적 합의를 인정한 판례···········································································28
3. 예외조항을 인정한 판례················································································30
4. 준거법 변경에 관한 합의를 부정한 판례····················································32
5. 일상적 노무제공지에 따라 준거법을 결정한 판례·····································34
6. 근로기준법의 국제적 강행규정성을 부정한 판례·······································38
Ⅳ. 소결···················································································································40
제3절 근로관계의 존속여부····················································································41
Ⅰ. 전적·전출의 판단기준······················································································41
1. 문제제기···········································································································42
2. 전적·전출의 개념····························································································42
3. 전적·전출명령의 유효조건·············································································42
4. 전적·전출의 근로관계·····················································································44
Ⅱ. 판례 검토··········································································································46
1. 형식적 절차만으로 근로관계 종료의 의사표시를 인정하지 않은 판례···46
2. 형식적 절차를 근로관계 종료의 의사표시라 본 판례 ·····························48
3. 당사자간 명확한 의사합치를 요구한 판례··················································50
Ⅲ. 소결···················································································································53
제4절 상시 사용하는 근로자 수의 산정기준·······················································53
Ⅰ. 사업 또는 사업장의 개념···············································································53
1. 문제제기···········································································································53
2. 사업 또는 사업장의 개념··············································································54
3. 사업 또는 사업장의 판단과 관련한 기존의 해석·······································55
Ⅱ. 판례 검토··········································································································55
1. 국내 근로자 수만을 산정기준으로 인정한 판례·········································55
2. 국내 근로자 수만을 산정기준으로 인정한 판례·········································58
3. 별개의 법인들을 하나의 사업장으로 인정한 판례·····································60
Ⅲ. 소결···················································································································62
제4장 결론··················································································································63
참고문헌····························································································································66
