기간제 근로계약의 기간만료에 대한 고찰

Exploration of Expiry of Term in Fixed-Term Work Contracts

The laws related to non-regular employees in effect since July 1st, 2007 see non-regular employment as a differentiating work conditions such as employment unrest and low wage and seem to be intended to settle problems by turning non-regular employees into regular ones after 2 years and correcting unequal working conditions such as wages. However, before and after implementation of fixed-term law, the conditions for non-regular employees worsened as can be seen from the mass layoff of employees who were eligible to secure continuous employment, replacement, outsourcing, division of work groups and so forth, which was taken to avoid the regulation of indefinite employment of fixed-term employees (Article 4, Clause 2). Still, effective control against this is absent. Thus, the principle of limit of termination rights that has persistently progressed according to legal precedents even before implementation of the fixed-term law shall be expanded in order to prevent such illegal acts. In the fixed-term employment contract, reasonable reasons are required for rejection of renewal after expiry in the event that “fixing the term has become only a formality. As for standards of judgment whether fixing the term is only a formality, precedents of the Supreme Court present “contents of the contract and motives and course of contracts, purposes of fixing the term and employees genuine will at the time of employment such as the willingness to continuously work, long and short duration of work period and number of renewals, practices in entering into the same kinds of work contracts, laws related to employee protection and so forth. However, in the event that the past behaviors such as the work period, renewals or number of renewals are not important as for judgment standards, based on motives and course of contract, purpose of fixing the term and employees genuine will of the party, a certain limit to employers rejection to renew can become possible seeing that fixing the term is only a formality when the term of the fixed-term work contract has been expired for the first time. Also, in the event that employees expectation for continuous work deserves protection in the fixed-term work contract, based on the precedents of the Supreme Court that there should be reasonable reasons more alleviated than the standards to fire such as justifiable reasons to reject renewal by inferring the principle of limit of termination rights, overall conditions as judgment standards of whether expectation was formed don t have to be limited to the past conditions, which enables to maintain that employers rejection to renew can be limited even when the fixed-term work contract has been expired for the first time. Based upon the above premise, in order for term expiry in the fixed-term work to be evaluated as abusing the rights regardless of the expiry being the first or after several times of renewals, continuity of work shall exist. Second, an urgent business necessity, one element of employers dismissal for business reasons, is absent. Third, reasons equivalent to dismissal based on disciplinary punishment on the part of employees are absent. Fourth, reasons equivalent to dismissal in general on the part of employees are absent (for example, loss or absence of required qualifications).