국제적 근로관계에 관한 준거법 결정에 대한 시론

Abstract

There seems to be no firmly-established principle with regard to determining the applicable law for the international employment contract yet despite the growing importance of the matter in the modern day global economy. In order to solve such problem, the ‘Foreign Factor’ in the Article 1 of the Private International Law is needed to be widely interpreted to cover the international employment matters.BR However, there still remains a problem with such application of Private International Law to the international employment contract: the interpretation theory of the Private International Law itself is yet to be firmly established. Against such backdrop, it is believed that, in principle, an international employment contract shall be governed by the law of the country where the employee habitually provides his/her service as stipulated in the Article 28 of the Private International Law, provided however, the parties may decide which law to apply by mutual agreement unless such application does not work unfavorably to the employee (Article 25). Of course, in case the applicable law specified by such reasoning is found less related to the corresponding legal relations and the law of another country is found most closely connected with such legal relation, the law of the other country should apply as prescribed in the Article 8 of the Private International Law. However, the Article 8 should only be acknowledged as an exception. Thus, it is believed that there are two criteria that should be considered in determining the applicable law to the international employment contract: one, which law governs the country where the employee habitually provides his/her services, two, whether the parties have made a mutual agreement on which law to apply regarding the employment contract.BR Further, the question of who the employer is should be differentiated from which law is applicable to the relevant employment relationship. Though it is required to confirm who the employer is as a prerequisite matter to the decision of applicable law, the applicable law should not decided by the factors like who the employer is or whether a global company has established a corporate personality or not. That is to say, the applicable law should not be decided upon whether the employer is a Korean corporation or foreign. For instance, if the employment relationship retains some Foreign Factors since the employee mainly works outside Korea, it should be first considered which law is applicable in the light of the principles of Private International Law, even when the both parties belongs to the Korean nationality.