노동법의 세계

제1편 노동법으로의 초대

제1장 모집 및 채용
I. 노동법의 개념 ············································································ 29
1. 시민법과 노동법 ● 31
2. 헌법과 노동법 ● 32
II. 노동법의 구성 및 특수성 ························································ 47
1. 노동법의 구성 ● 47
2. 노동법의 특수성 ● 48
III. 노동법의 발전과 전개 ···························································· 49
1. 각 국의 노동법 ● 49
2. 우리나라 노동법 ● 51
IV. 공공부문의 노동법 ································································· 52
1. 개요 ● 52
2. 공무원에 대한 노동3권의 제한 ● 53
3. 교원 ● 54
4. 주요방위업체에 종사하는 근로자 ● 55
5. 헌법 제37조 제2항에 의한 노동3권의 제한 ● 56
6. 비상사태 등에 의한 제한 ● 57
V. 노동법의 법원 ·········································································· 57

제2장 노동법의 주체
I. 근로자 ························································································ 60
1. 근로기준법상의 근로자 ● 60
2. 노동조합법상의 근로자 ● 62
3. 기타법상의 근로자 ● 63
II. 사용자 ···················································································· 63
1. 근로기준법상의 사용자 ● 63
2. 노동조합법상의 사용자 ● 64
III. 노동조합 ················································································ 65
1. 노동조합의 종류 ● 65
2. 노동조합의 개념 및 요건 ● 68

제3장 근로조건의 결정 시스템
I. 근로계약 ···················································································· 75
II. 취업규칙 ··················································································· 76
III. 단체협약 ················································································· 76
IV. 노사관행 ·················································································· 77

 

제2편 기업과의 만남

제1장 모집 및 채용
I. 모집 및 채용의 자유 ·································································· 81
1. 의의 ● 81
2. 모집 및 채용의 자유와 그 제한 ● 82
II. 채용내정 ·················································································· 85
1. 의의 ● 85
2. 법적 성질 ● 85
3. 근로계약의 성립시기 ● 86
4. 채용내정과 근로관계 ● 87
노동법의 세계
III. 시 용 ························································································ 88
1. 의의 ● 88
2. 법적성질 ● 88
3. 시용기간 및 그 연장 ● 89
4. 시용과 근로관계 ● 89
IV. 근로조건의 명시 ······································································ 91
1. 개념 ● 91
2. 명시의 시기 ● 91
3. 명시의 내용 ● 92
4. 명시의 방법 ● 93
5. 명시위반의 효과 ● 93

제2장 근로계약의 기본원리
I. 근로계약상의 근로자 및 사용자의 권리 및 의무 ······················ 95
1. 근로자의 의무 ● 96
2. 사용자의 의무 ● 99
II. 근로계약기간의 설정 ····························································· 102
1. 법규정 ● 102
2. 원칙적 근로계약기간 ● 103
3. 예외적 근로계약기간 ● 103
III. 근로계약체결에 대한 근로기준법상의 규제 ························ 104
1. 위약예정금지 ● 104
2. 전차금상쇄의 금지 ● 106
3. 강제저축의 금지 ● 108
4. 신원보증계약 ● 109

제3장 평등원칙
I. 근로기준법상의 균등(평등)대우 ·············································· 111
1. 의의 ● 111
2. 차별대우의 사유 ● 112
3. 근로조건에 대한 차별적 대우 ● 114
II. 남녀고용평등법상의 평등대우 ·············································· 115
1. 의의 ● 115
2. ‘동일가치노동에 대한 동일임금지급’의 원칙 ● 116
3. 모집과 채용상의 성차별금지 ● 117
4. 교육·배치 및 승진에 있어서 차별금지 ● 118
5. 정년·퇴직 및 해고에 있어서의 차별금지 ● 118
6. 위반의 효과 ● 118

제4장 취업규칙
I. 의의 ························································································· 121
1. 개념 ● 121
2. 취업규칙의 법적 성질 ● 122
II. 취업규칙의 작성 ····································································· 125
1. 취업규칙의 작성의무 ● 125
2. 취업규칙의 기재사항 ● 129
III. 취업규칙의 변경 ··································································· 130
1. 의의 및 법규정 ● 130
2. 불이익하지 아니한 취업규칙의 변경 ● 130
3. 불이익한 취업규칙의 변경 ● 131
IV. 취업규칙의 신고·심사 및 주지의무 ······································· 139
1. 신고의무 ● 139
2. 법령·단체협약 위반의 금지 ● 139
3. 주지의무 ● 140
V. 취업규칙과 법령 등과의 관계 ················································ 140
1. 법령 및 단체협약과의 관계 ● 140
2. 근로계약과의 관계 ● 141

제5장 비정규직고용 및 외국인고용
I. 비정규직 근로자 ······································································ 143
1. 비정규직 근로자의 개념 ● 143
2. 비정규직 근로자의 증가원인 ● 145
노동법의 세계
3. 비정규직근로자의 보호규정 ● 145
II. 외국인 근로자 ········································································ 158
1. 외국인근로자들의 유입배경 ● 158
2. 외국인근로자들의 취업경로 ● 158
3. 고용허가제 ● 160

 

제3편 단체와의 만남

제1장 노동조합
I. 노동조합의 설립요건 ······························································· 168
1. 실질적 요건 ● 168
2. 노동조합의 설립신고 및 심사제도 ● 175
II. 노동조합의 성립 및 법적 효과 ··············································· 178
1. 노동조합의 성립시기 ● 178
2. 노동조합의 성립의 법적 효과 ● 179
III. 노동조합의 운영 ··································································· 181
1. 의의 ● 181
2. 조합원의 지위의 취득 및 상실 ● 181
3. 유니언숍(union shop) ● 182
4. 노동조합의 규약 ● 186
5. 노동조합의 기관 ● 187
6. 노동조합의 재정 ● 190
7. 노동조합의 내부통제권 ● 192
IV. 노동조합의 활동 ···································································· 197
1. 의의 ● 197
2. 정당한 노조활동 ● 197
3. 편의제공 ● 204
V. 노동조합의 해산과 조직변경 ················································· 209
1. 의의 ● 209
2. 노동조합의 해산 ● 209
3. 노동조합의 조직변경 ● 211
4. 노조의 합병 및 분할로 인한 소멸 ● 211

제2장 단체교섭
I. 단체교섭의 의의 ····································································· 215
1. 단체교섭의 개념 및 기능 ● 215
2. 단체교섭의 법적 보호 ● 216
II. 단체교섭의 주체 ····································································· 218
1. 개념 ● 218
2. 단체교섭의 당사자 ● 218
3. 단체교섭의 담당자 ● 226
III. 단체교섭의 대상 ··································································· 230
1. 개념 및 한계 ● 230
2. 교섭사항의 일반적 기준 ● 231
IV. 단체교섭대상의 내용 ···························································· 232
1. 근로조건 관련 사항 ● 232
2. 집단적 노사관계의 운영에 관한 사항 ● 236
V. 단체교섭의 방식과 절차 ························································· 236
1. 성실교섭의무 ● 236
2. 단체교섭의 방식 ● 239
3. 단체교섭의 절차 ● 241

제3장 단체협약
I. 총 설 ························································································ 243
1. 단체협약의 의의 ● 243
2. 단체협약의 기능 ● 243
3. 단체협약의 법적 성질 ● 244
II. 단체협약의 성립 ····································································· 245
1. 단체협약의 당사자 ● 245
2. 단체협약의 형식 ● 246
노동법의 세계
III. 단체협약의 신고 ··································································· 247
IV. 단체협약의 내용과 효력 ······················································· 248
1. 단체협약의 규범적 내용과 효력 ● 248
2. 단체협약의 채무적 내용과 효력 ● 250
3. 단체협약의 조직적 내용과 효력 ● 253
4. 단체협약위반의 효과 ● 253
V. 단체협약의 적용범위 ····························································· 254
1. 의의 ● 254
2. 단체협약의 인적 적용범위 ● 255
3. 단체협약의 장소적 적용 범위 ● 257
VI. 단체협약의 종료 ··································································· 259
1. 의의 ● 259
2. 단체협약의 유효기간 ● 259
3. 자동연장협정과 자동갱신협정 ● 260
4. 단체협약의 취소 및 해지 ● 261
5. 단체협약 당사자의 변경 ● 262
6. 단체협약 종료 후의 근로관계 ● 263

 

제4편 근로조건의 여러 가지 형태

제1장 임 금
I. 개 념 ························································································ 267
1. 임금의 의의 ● 267
2. 임금의 개념 ● 267
3. 평균임금과 통상임금 ● 271
II. 임금액의 보호 ········································································ 280
1. 서설 ● 280
2. 최저임금제도 ● 280
3. 근로기준법상 도급근로자의 임금보호 ● 285
III. 임금의 지급방법과 비상시지급 ············································ 287
1. 임금지급의 원칙 ● 287
2. 임금의 비상시 지급 ● 291
IV. 임금채권의 보호 ···································································· 293
1. 임금채권의 우선변제 ● 293
2. 도급사업의 임금채권 보호 ● 296
3. 기타의 임금채권 보호규정 ● 297
V. 휴업수당 ················································································· 298
1. 의의 ● 298
2. 법적 성질 ● 298
3. 휴업수당의 지급요건 ● 299
4. 휴업수당의 지급 ● 300
5. 쟁의행위와 휴업수당 ● 301
6. 기타의 관련문제 ● 303

제2장 근로시간
I. 총 설 ························································································ 305
1. 개요 ● 305
2. 근로시간의 개념 ● 306
3. 근로시간의 산정 ● 307
II. 시간외근로 ············································································· 308
1. 연장근로의 의의 및 입법취지 ● 308
2. 합의에 의한 연장근로 ● 308
3. 연장근로의 인가와 제한 ● 312
III. 가산임금 ··············································································· 314
1. 의의 ● 314
2. 가산임금의 지급사유 ● 315
3. 야간근로에 대한 지급 ● 315
4. 휴일근로에 대한 지급 ● 316
IV. 근로시간의 유연화 ································································ 317
1. 탄력적 근로시간제 ● 317
2. 선택적 근로시간제 ● 320
V. 유해·위험작업에 있어서의 기준근로시간 ······························ 324
1. 의의 ● 324
2. 내용 ● 324
VI. 근로시간 계산의 특례 ··························································· 326
1. 개념 ● 326
2. 인정근로시간제 ● 326
3. 재량근로시간제 ● 328
VII. 근로시간 및 휴게의 특례 ···················································· 330
1. 의의 ● 330
2. 요건 ● 330
3. 인정효과 ● 331
VIII. 특수근로자에 대한 적용제외 ············································· 332
1. 의의 ● 332
2. 적용범위 ● 332
3. 적용대상 ● 333

제3장 휴게·휴일·휴가
I. 총 설 ························································································ 335
II. 휴게시간 ················································································· 336
1. 의의 ● 336
2. 내용 ● 336
3. 자유이용의 원칙 ● 337
4. 적용 제외 ● 338
III. 휴일 ······················································································· 339
1. 의의 ● 339
2. 주휴제의 원칙 ● 339
3. 휴일근로수당 ● 340
4. 적용제외 ● 340
IV. 휴가 ······················································································· 340
1. 총설 ● 340
2. 연차유급휴가 ● 341
3. 연차유급휴가의 대체 ● 346

제4장 여성과 연소자
I. 총 설 ························································································ 349
II. 여성과 연소자에 대한 공통된 보호 ········································ 350
1. 탄력적 근로시간제도의 금지 ● 350
2. 야간·휴일근로의 금지 ● 351
3. 유해·위험사업에의 사용금지 ● 353
4. 갱내근로의 금지 ● 354
III. 연소근로자에 대한 특별보호 ················································ 355
1. 총설 ● 355
2. 최저취업연령의 제한 ● 356
3. 연소자증명서의 비치 ● 356
4. 미성년자의 근로계약과 임금청구 ● 357
5. 연소자의 근로시간의 특례 ● 360
IV. 여성근로자에 대한 특별보호 ················································ 361
1. 생리휴가 ● 361
2. 산전·산후 휴가 ● 364
3. 유급육아시간 ● 368
4. 연장근로의 제한 ● 371

제5장 안전과 보건
I. 총 설 ························································································ 375
II. 안전·보건관리체계 ································································· 376
1. 안전보건관리책임자 ● 376
2. 관리감독자 ● 376
3. 안전관리자 ● 376
4. 보건관리자 ● 377
5. 산업보건의 ● 377
6. 안전보건관리 총괄책임자 ● 377
7. 산업안전보건위원회 ● 378
8. 명예산업안전감독관 ● 378
III. 안전보건관리규정의 작성 및 준수 ······································· 379
1. 안전보건관리규정의 작성 ● 379
2. 안전보건관리규정의 준수 및 효력 ● 379
IV. 유해·위험예방조치 ································································ 380
1. 사업주의 의무 ● 380
2. 근로자의 의무 ● 382
V. 근로자의 보건관리 ································································· 383
1. 서설 ● 383
2. 작업환경의 측정 ● 383
3. 건강진단 ● 384
4. 건강관리수첩의 교부 ● 384
5. 역학조사 ● 384
6. 취업제한에 의한 건강보호 ● 385
VI. 안전·보건상의 의무·교육과 감독·명령 ································· 385
1. 사업주의 안전교육의무 ● 385
2. 사업주의 위험방지의무 ● 386
3. 사후적 구제조치 ● 386
4. 불이익처우 금지 ● 387

제6장 산업재해보상
I. 총 설 ························································································ 389
1. 산업재해보상의 의의 ● 389
2. 산업재해보상의 체계 ● 390
3. 적용범위 ● 391
II 업무상 재해 ············································································ 392
1. 법규정 ● 392
2. 업무상 재해의 개념 ● 393
3. 업무상 재해의 인정기준 ● 396
III 산업재해보상의 종류와 내용 ················································ 401
1. 서설 ● 401
2. 요양보상 및 요양급여 ● 401
3. 휴업보상·휴업급여 ● 402
4. 장해보상·장해급여 ● 403
5. 유족보상·유족급여 ● 405
6. 장의비 ● 406
IV 재해보상청구권·재해급여수급권의 보호 ····························· 407
1. 양도·압류 등의 금지 ● 407
2. 소멸시효 ● 407
V. 도급사업과 특수형태근로종사자에 대한 예외 ······················ 408
1. 근로기준법상의 예외 ● 408
2. 산재보상법상의 예외 ● 408
VI. 산업재해보상에 대한 이의신청 ············································ 409
1. 노동법상의 구제제도 ● 409
2. 민법상의 손해배상 ● 411
VII. 재해보상과 손해배상 ·························································· 411
1. 병존주의와 이중보상의 금지 ● 411
2. 사용자의 고의·과실에 의한 재해 ● 412
3. 제삼자의 고의·과실에 의한 재해 ● 413

제7장 인사이동
I. 인사이동의 의의 ······································································ 415
1. 인사이동의 개념 ● 415
2. 근로기준법상의 “전직”과의 관계 ● 415
II. 인사권의 법적 근거 ································································ 416
1. 직무내용의 변경 ● 417
2. 직무장소의 변경 ● 417
III. 기업내 인사이동 ··································································· 417
IV. 기업간의 인사이동 ································································ 418
1. 전출 ● 418
2. 전적 ● 419
V. 인사권의 제한 ········································································· 421

 

제5편 분쟁과의 만남

제1장 해고를 둘러 싼 분쟁
I. 해고의 자유 ············································································· 425
1. 민법상의 해고의 자유 ● 425
2. 노동법상의 해고제한 ● 427
II. 부당해고의 법적 효과 ···························································· 438
1. 실질적 요건이 결여된 경우 ● 438
2. 절차적 요건이 결여된 경우 ● 438
III. 부당해고의 구제 ··································································· 440
1. 관련규정 ● 440
2. 부당해고의 구제 ● 440

제2장 기업질서와 징계
I. 복무규율의 내용 ······································································ 447
II. 징계처분의 종류와 절차 ························································ 448
1. 징계처분의 종류 ● 448
2. 징계처분의 절차 ● 449
III. 징계권의 근거 ······································································ 450
1. 의의 ● 450
2. 학설 ● 450
IV. 징계사유 ················································································ 451
1. 복무규율 위반 ● 451
2. 업무명령 위반 ● 452
3. 업무방해 ● 452
4. 근로자의 기업 외 활동의 비행 ● 452
5. 경력사칭 ● 453

제3장 쟁의행위
I. 쟁의행위의 개념과 의의 ·························································· 455
1. 단체행동과 쟁의행위 ● 455
2. 유사개념의 구별 ● 456
II. 쟁의행위의 유형 ····································································· 457
1. 파업 ● 457
2. 태업 ● 458
3. 직장점거 ● 458
4. 준법투쟁 ● 461
5. 그 밖의 쟁의행위의 유형 ● 463
6. 필수유지업무제도 ● 465
III. 쟁의행위의 정당성 ································································ 467
1. 총설 ● 467
2. 정당한 쟁의행위와 민·형사 면책 ● 468
3. 쟁의행위의 정당성 요건 ● 469
4. 정당한 쟁의행위의 민·형사상 면책 ● 472
5. 정당성을 상실한 쟁의행위의 민사책임 ● 474
6. 정당성을 상실한 쟁의행위와 형사책임 ● 475
7. 정당성을 상실한 쟁의행위와 징계책임 ● 476
IV. 직장폐쇄 ················································································ 478
1. 총설 ● 478
2. 직장폐쇄의 의의 ● 478
3. 인정근거 및 절차요건 ● 479
4. 직장폐쇄의 정당성 ● 480
5. 직장폐쇄의 효과 ● 482
V. 쟁의행위의 제한·금지 ···························································· 483
1. 총설 ● 483
2. 헌법에 의한 제한·금지 ● 483
3. 노동조합법에 의한 제한·금지 ● 484
VI. 쟁의행위와 근로관계 ···························································· 488
1. 총설 ● 488
2. 쟁의행위와 근로관계의 존속여부 ● 489
3. 쟁의행위와 임금 ● 489
4. 쟁의행위와 기타 근로관계 ● 493
5. 쟁의행위 종료 후의 근로관계 ● 494
VII. 쟁의행위와 제3자 ································································ 495
1. 총설 ● 495
2. 정당한 쟁의행위와 제3자 손해 ● 495
3. 정당성 없는 쟁의행위와 제3자 손해 ● 497
4. 공익사업 ● 498

제4장 부당노동행위
I. 총 설 ························································································ 501
1. 법규정 및 의의 ● 501
2. 부당노동행위제도의 특성 ● 503
II. 부당노동행위의 종류 ····························································· 504
1. 불이익취급 ● 504
2. 황견계약(비열계약) ● 508
3. 단체교섭거부 ● 512
4. 지배개입 및 경비원조 ● 515
III. 부당노동행위의 구제절차 ···················································· 518
1. 의의 및 특색 ● 518
2. 노동위원회에 의한 행정적 구제 ● 520
3. 부당노동행위의 사법구제 ● 524
4. 행정구제와 사법구제의 관계 ● 525

제5장 노사분쟁의 해결수단
I. 노동위원회의 종류·구성 및 권한 ············································ 529
1. 노동위원회의 종류 ● 529
2. 노동위원회의 구성 ● 530
3. 노동위원회의 권한 ● 532
II. 노동쟁의의 조정 ····································································· 535
1. 총설 ● 535
2. 노동조합법에 의한 조정 ● 535
III. 노동쟁의의 조정절차 ···························································· 537
1. 조정 ● 537
2. 공익사업의 특별조정절차 ● 540
3. 중재 ● 541
4. 긴급조정 ● 545
IV. 노동위원회의 회의 ································································ 546
1. 회의의 구성 ● 546
2. 회의의 진행 ● 548

 

제6편 회사와의 결별

제1장 근로관계의 종료
I. 해고 ························································································· 553
II. 사직 및 합의 해약 ··································································· 554
1. 사직 ● 554
2. 합의해약 ● 556
III. 근로계약 기간의 만료 및 정년제 ·········································· 559
1. 근로계약 기간의 만료 ● 559
2. 정년제 ● 559
IV. 당사자의 소멸 ······································································· 561

제2장 고용보험
I. 고용보험제도의 의의 ······························································· 563
II. 고용보험의 적용범위 ····························································· 564
1. 적용범위의 일반원칙 ● 564
2, 적용의 예외 ● 564
III. 고용보험제도의 내용 ···························································· 565
1. 고용안정사업 ● 566
2. 직업능력개발사업 ● 571
3. 모성보호사업 ● 573
4. 실업급여 ● 573
IV. 고용보험의 비용부담 ···························································· 576

제3장 재취업과 은퇴
I. 고령자의 재취업 ····································································· 579
II. 은 퇴 ······················································································· 580

찾아보기

I. 사항 색인 ················································································ 581
II. 판례 색인 ················································································ 590