사업양도시 고용승계에 관한 법제개선방안

전체 글

(1)사업양도시 고용승계에 관한 법제개선방안. 2000. 11. 30.. 유. 성. 재.

(2) 목 차 제 1 장 서 론 ····································································································· 7 제 1 절 문제제기 ······························································································ 7 제 2 절 구조조정의 유형과 고용승계 ························································· 9 1. 의 의 ········································································································ 9 2. 회사의 합병 ····························································································· 9 3. 회사의 인수 ·························································································· 10 4. 회사의 분할 ·························································································· 10 5. 사업양도 ································································································ 11 6. 소 결 ······································································································ 11. 제 2 장 사업양도의 개념 ·········································································· 13 제 1 절 의 의 ································································································· 13 제 2 절 사업양도와 영업양도의 구별 ······················································· 13 1. 의 의 ······································································································ 13 2. 노동법상의 사업양도 ··········································································· 14 3. 상법상의 영업양도 ··············································································· 14 4. 양자의 구별 ·························································································· 15. 제 3 절 사업양도의 성립요건 ····································································· 16 1. 의 의 ······································································································ 16 2. 학 설 ······································································································ 19 3. 판 례 ······································································································ 24 4. 외국의 입법례 ······················································································ 27. 제 4 절 기능이전의 사업양도 해당성 ······················································· 29 1. 의 의 ······································································································ 29 2. 판 례 ······································································································ 30 3. 외국의 입법례 ······················································································ 33 4. 사 견 ······································································································ 38.

(3) 제 5 절 소 결 ································································································· 38 1. 법개정의 방향 ······················································································ 38 2. 개정시안 ································································································ 39. 제 3 장 사업양도와 고용승계 ································································· 41 제 1 절 의 의 ································································································· 41 제 2 절 현행법의 해석 ················································································· 41 1. 학 설 ······································································································ 41 2. 판 례 ······································································································ 44 3. 고용승계의무의 유추가능성 ······························································· 45. 제 3 절 외국의 입법례 ················································································· 48 1. 유럽연합 ································································································ 48 2. 독 일 ······································································································ 50 3. 프랑스 ···································································································· 52 4. 스위스 ···································································································· 53 5. 일 본 ······································································································ 54. 제 4 절 해고의 효력을 다투는 자의 고용승계 ······································ 56 1. 의 의 ······································································································ 56 2. 판 례 ······································································································ 57 3. 사 견 ······································································································ 59. 제 5 절 파산시 사업양도와 고용승계 ······················································· 60 1. 의 의 ······································································································ 60 2. 외국의 입법례 ······················································································ 61 3. 입법방향 ································································································ 62. 제 6 절 소 결 ································································································· 62 1. 법개정의 필요성 ·················································································· 62 2. 관련 검토사항 ······················································································ 63 3. 개정시안 ································································································ 64.

(4) 제 4 장 고용승계와 당사자의 권리․의무 ······································ 65 제 1 절 의 의 ································································································· 65 제 2 절 근로자의 거부권 ············································································· 65 1. 의 의 ······································································································ 65 2. 거부권의 인정여부 ··············································································· 66 3. 거부권 행사의 요건 ············································································· 71 4. 거부권의 행사기간 ··············································································· 73 5. 개정시안 ································································································ 76. 제 3 절 사용자의 통지의무 ········································································· 76 1. 법개정의 필요성 ·················································································· 76 2. 법개정의 방향 ······················································································ 77 3. 개정시안 ································································································ 77. 제 4 절 근로관계로 인한 채무의 귀속 ···················································· 77 1. 문제제기 ································································································ 77 2. 외국의 입법례 ······················································································ 78 3. 입법방향 ································································································ 80 4. 개정시안 ································································································ 81. 제 5 장 고용승계 후의 근로조건 ·························································· 83 제 1 절 의 의 ································································································· 83 제 2 절 고용승계와 노동조합의 지위 ······················································· 84 1. 현행법상의 문제점 ··············································································· 84 2. 판 례 ······································································································ 85 3. 법개정의 방향 ······················································································ 87 4. 개정시안 ································································································ 88. 제 3 절 고용승계와 단체협약의 효력 ······················································· 88 1. 의 의 ······································································································ 88 2. 학 설 ······································································································ 88 3. 판 례 ······································································································ 92.

(5) 4. 외국의 입법례 ······················································································ 94 5. 소 결 ······································································································ 98. 제 4 절 고용승계와 취업규칙의 효력 ···················································· 100 1. 의 의 ··································································································· 100 2. 취업규칙의 법적 성질 ······································································ 101 3. 취업규칙의 효력 ················································································ 103 4. 양수인의 취업규칙과의 관계 ··························································· 105 5. 소 결 ··································································································· 109. 제 5 절 고용승계와 노사협의회 의결사항의 효력 ······························ 110 1. 법개정의 필요성 ················································································ 110 2. 개정방향 ······························································································ 111 3. 개정시안 ······························································································ 111. 제 6 장 결 론 ································································································ 113 제 1 절 법개정의 필요성과 위치 ···························································· 113 1. 법개정의 필요성 ················································································ 113 2. 개정법의 위치 ···················································································· 114. 제 2 절 개정시안 ························································································· 115. 부 록 : 각국의 입법례 및 입법안 ··················································· 117 Ⅰ. 유럽연합 ································································································ 117 Ⅱ. 독 일 ······································································································ 124 (1) 독일민법 제613a조 ······································································ 124 (2) 敎授案(E-ArbVG 1992) ···························································· 125 (3) 社民黨案(E-Brandenburg 1996) ··········································· 126 (4) 基民黨案(E-Sachsen 1995) ····················································· 127. Ⅲ. 스위스 ···································································································· 129 Ⅳ. 일 본 ······································································································ 130. <참 고 문 헌> ······························································································ 135.

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(7) 제 1 절 문제제기. 제1장 서 론 제 1 절 문제제기 최근 우리 사회전반에서는 효율성 제고와 경쟁력 강화를 위한 구조조정 이 진행되고 있다. 이러한 현상의 하나로 최근 기업에서는 기업간 사업교 환과 부실기업의 정리가 활발하게 이루어지고 있다. 이러한 기업의 자산이 전에는 회사의 합병과 같이 기업의 자산이 포괄적으로 이전될 수도 있고 상법 제41조 내지 제45조의 경우와 같이 기업자산의 일부만을 이전할 수 도 있다. 전자의 경우에는 상법(상법 제235조, 제269조, 제530조, 제603 조)의 적용을 받아 양도인과 양수인 사이의 권리․의무관계가 비교적 명확 하지만, 후자의 경우에는 이전될 권리․의무의 범위가 명확하지 않은 문제 가 있다. 아래에서는 기업자산의 일부를 이전하는 경우, 즉 사업양도에 있어서 고 용승계의 문제에 대하여 살펴보고자 한다. 기업자산의 일부만 이전하는 경 우에도 양도인, 양수인, 근로자가 합의에 의하여 고용을 승계하기로 한다면 근로관계는 당연히 승계되게 될 것이다.1) 문제는 사업양도계약에 고용승계 에 관한 합의가 없거나 양도인과 양수인이 고용승계에 대한 반대에 의사를 명백히 하고 있는 경우이다.2) 근로관계의 이전에 관하여 현행법상의 유일한 법규정은 민법 제657조이 다. 민법 제657조는 고용계약에 있어서 권리의무의 전속성에 대한 규정으. 1) 이러한 계약인수에 대하여는 서민, “계약인수”, 민법학논총(곽윤직교수화갑기념논문 집), 1985년, 393면 이하 참조. 2) 지금까지는 노동법학계에서는 “사업양도”라는 용어보다는 “영업양도”라는 용어를 주로 사 용하였다. 그러나 최근에는 몇 몇 학자들을 중심으로 양자의 차이를 명확히 하기 위하여 “사업양도”라는 용어를 사용하고 있다. 사업이라는 용어는 영리를 목적으로 하지 않는 곳 에서 근무하는 자에게도 노동관계법을 적용하기 위하여 노동법분야에서는 이미 오래 동 안 사용되어 왔으므로 위에서 언급한 노동법상의 문제들을 부각시키기에 더 적절하다고 생각한다. 따라서 본 연구에서는 노동법분야에서도 일반적으로 사용하던 “영업양도”라는 용어를 대신하여 “사업양도”라는 용어를 사용하기로 한다. 同旨: 이승욱, 사업양도와 근 로자의 지위, 박사학위논문(서울대), 20면 각주 3번; 임종률, “사업주의 변경과 근로자의 법적 지위”, 민법학논총(곽윤직교수화갑기념논문집), 1985, 536면, 각주 1 참조.. 7.