이흥재 교수의 해고제한론

초록

This article aims to overview Professor Lee, Heung-jae's theory on the restriction of dismissal, focusing on his 1988 doctoral dissertation, “A Study on the Restriction of Dismissal,” which integrates his concepts and proposals on the subject. Professor Lee's research in labor law began with the restriction of dismissal. He envisioned a community where everyone cooperates and stands in solidarity to lead a free life through fulfilling work. This intersection of realistic concerns and future aspirations led him to the concepts of the ‘right to enjoy work’ and the restriction of dismissal. His research might be summarized as follows: First, the primary objective of his study was to “legally organize measures for the ex-ante prevention of unfair dismissal and the securing of effective remedy systems for dismissed workers,” with the ultimate goal being security of employment. While the study focused on the legal aspects of dismissal restrictions, it did not limit itself to individual employment relations but expanded to include collective labor relations and social security law. Methodologically, he established the ‘right to enjoy work’ as a fundamental legal concept encompassing the entire system of social law. Based on this, he presented a model to elucidate the legal structure of dismissal restrictions through the concrete guarantee and development of this right. Here, the ‘right to enjoy work’ refers to the right to enjoy a free life through the fulfillment of work. Its direct constitutional basis is derived from the ‘right to work’, aiming to realize ‘human dignity and value’ and the ‘right to pursue happiness’. Second, he categorized the restrictions on dismissal into substantive legal restrictions and procedural legal restrictions. He further divided the former into substantive requirements and procedural requirements, aligning each with the guarantee of the right to enjoy work. Specifically, substantive requirements were matched with the “substantive conditions for limiting the right to enjoy work,” procedural requirements with the “procedural limits on restricting the right to enjoy work,” and procedural legal restrictions with the “remedy for the infringement of the right to enjoy work.” Third, since the criterion for determining ‘just cause’ for dismissal is the guarantee of the right to enjoy work, it should be interpreted that “the restriction of the right to enjoy work—namely, the justification for dismissal—is met only when there are decisive deficiencies or urgent circumstances that prevent the worker from continuing to enjoy work.” Fourth, to ensure justice in dismissal procedures, the worker's ‘right of self-determination regarding the right to enjoy work’ must be secured. This includes the right to prior notice, the right to defense, and the right to participation. These rights must be guaranteed regardless of whether they are explicitly stated in collective agreements or employment rules. Fifth, he emphasized the improvement of the remedy system for dismissal. While advocating for the securing of reinstatement, the recognition of the right to claim work, and the acknowledgement of compensation for emotional distress, he proposed a comprehensive three-stage plan: (1) improvement of the administrative remedy system, (2) enactment of legislation to restrict layoffs, and (3) enactment of unified legislation on dismissal restrictions and the establishment of a Labor Court.

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