채용내정법리의 재고찰 = Re-examination of the tentative decision to hire

다국어 초록 (Multilingual Abstract)

With regard to the employment of regular employees, in the hiring of new school graduates, the usual steps are: (1) the employer's recruitment of workers; (2) the application for the job by the workers; (3) the administration of employment examinations, and the decision as to whether they have been passed; (4) notification of the tentative decision to hire, and the submission by the workers of their written undertaking and personal references; (5) A diagnosis of the workers' health; and on the date of entry into the company; (6) a ceremony making the entry into the company and the delivery of a written appointment to the job. On occasion, even in the course of recruitment of mid-career employees by means of newspaper and magazine advertisements or through the Public Employment Security Offices, a tentative decision is arrived at through a modified or condensed version of the above procedures. The legal meaning of these multi-step processes for reaching a tentative decision has been the subject of much debate. However, the Legality of an employer's cancellation of a tentative decision has been repeatedly raised in the courts by those affected by such cancellations. The issues have been dealt with by legal scholars and judicial decisions.
Since a tentative hiring decision constitutes the formation of a labor contract that is accompanied by a starting date and the employer's right of cancellation, the legality of canceling a tentative hiring decision implicates the legality of the exercising a retained right of cancellation. The contents of the retained right of cancellation, are extablished by reference to the “reason for cancellation” mentioned in the notification of the tentative hiring decision or a written acceptance of the tentative hiring In other words, the mention of “reason for cancellation” is frequently wide-ranging and stated in vague terms. However, the two previously mentioned judicial decisions limited the reasons for cancellation to “those which are seen to be objectively reasonable in the light of the objectives of preserving the right of cancellation, and appropriate as measured by public attitudes”. Conversely, where the mention of “reason for cancellation” in the case are not adequately phrased, the employer can rely on reasons not set forth in the employer's contract-cancellation statement if those reasons are appropriate as measured by public attitudes.

목차 (Table of Contents)

• Ⅰ. 문제의 제기
• Ⅱ. 채용내정의 의의
• Ⅲ. 채용내정의 법적 성질
• Ⅳ. 채용내정에 있어서 근로계약의 성립
• Ⅴ. 근로기준법의 적용여부
• Ⅵ. 채용내정기간 중의 연수 등 요청거부를 이유로 한 채용내정취소의 유효성
• Ⅶ. 결어
• 참고문헌
• 〈Abstract〉

참고문헌 (Reference)

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