이행강제금 제도의 합리적 운영방안에 관한 연구

Abstract

Article 33 of the 「Labour Standards Act」 stipulates a charge system for compelling performance imposed on employers who fail to carry out remedial order of the Labor Relations Commission. Prior to the introduction of the charge system for compelling performance, the 「Labour Standards Act」 only stipulated criminal sanctions as a penalty for unfair dismissal. In other words, there was no effective remedy for unfair dismissal. Moreover, there was a question that the degree of criminal punishment stipulated at that time was very slight and thus its effectiveness was low, and criticism was continuously raised that it was not desirable to apply criminal punishment to employer who is decapitator unfairly. In general, the most advantageous remedy for employee is "the continuation of the labour relationship", so it was necessary to find a way to force employer to reinstate employee. On that basis, when the 「Labour Standards Act」 was revised in 2007, the compulsory performance system was introduced in Korea.<BR> Since then, as the compulsory performance system has been in operation for more than a decade, various problems have been raised. In this article, for the effectiveness of the charge system for compelling performance, which is a remedy for unfair dismissal of employee, the standards for imposition of payment enforcement fine stipulated in the current enforcement ordinance were examined, and review the points in dispute for example, the reasonable standards for calculating the amount of charges, which have taken into account various factors such as the size of the workplace and the period of non-fulfillment, as well as problems in the procedures that have been raised. Considering the legislative purpose of the charge system for compelling performance and in order for the imposition of enforcement fine to play a full role in protecting employee, an effective solution should be sought and realized. To this end, concrete interpretation studies of the meaning of ‘employee"s reinstatement in his former office’ and ‘amount equivalent to the wages’, establishment of specific calculation methods for amount of enforcement fine, and further improvement in procedures to quickly rescue employee who are dismissed unfairly should be made as soon as possible.