쟁점 노동법

제 1 편 노동법 총론
제 1 편 제 1 장 노동법의 의의
★☆☆ 쟁점 01. 노동법의 의의 ····························· 3
제 1 편 제 2 장 노동법의 법원
★★☆ 쟁점 01. 노동법의 법원(法源) ································ 5
★★☆ 쟁점 02. 노동관행의 법원성 인정 여부 ··················· 7
★★★ 쟁점 03. 단체협약과 유리원칙 ····································· 9
★★★ 쟁점 04. 사업(장)단위 일반적 구속력과 유리원칙 ······· 11
★★★ 쟁점 05. 근로조건의 변경 ································· 13
제 1 편 제 3 장 노동3권
★☆☆ 쟁점 01. 노동3권(근로3권, 단결활동권) ························· 15
★☆☆ 쟁점 02. 노동3권의 법적 성질 ·································· 19
★☆☆ 쟁점 03. 노동3권의 상호관계 ······························ 21
제 1 편 제 4 장 근로자와 사용자
★★☆ 쟁점 01. 근로자 ·········································· 23
★★☆ 쟁점 02. 근로기준법상의 근로자 ······························· 26
★★★ 쟁점 03. 근로기준법상 근로자에 해당하는지 여부의 판단기준 ····················· 30
★★★ 쟁점 04. 근로기준법상 근로자와 노조법상 근로자 개념의 관계 ··················· 32
★★☆ 쟁점 05. 노조법상의 근로자 ······························· 35
★★★ 쟁점 06. 노조법 제2조 제4호 라목의 “근로자” ·············· 37
★★☆ 쟁점 07. 사용자 ······················································ 42
★★★ 쟁점 08. 단체교섭의 당사자로서의 사용자 ···········45
★★★ 쟁점 09. 부당노동행위의 주체로서의 사용자 ·········· 47
쟁점 노동법
제 2 편 개별적 근로관계법 (근로계약법)
제 2 편 제 1 장 근로기준법 총설
★★☆ 쟁점 01. 근로기준법 총설 ······················································ 53
★★★ 쟁점 02. 근로기준법의 적용범위 ······························· 59
★★★ 쟁점 03. 평등대우의 원칙(균등대우의 원칙, 차별적 처우의 금지) ··············· 63
★★☆ 쟁점 04. 강제근로의 금지 ······························································ 68
★★☆ 쟁점 05. 중간착취의 배제(중간착취의 금지) ···························· 70
★★☆ 쟁점 06. 공민권 행사의 보장(공민권 행사 등의 보장) ··························· 72
제 2 편 제 2 장 근로계약
★★☆ 쟁점 01. 근로계약 ········································ 74
★★☆ 쟁점 02. 근로계약 당사자의 권리?의무 ························ 82
★★★ 쟁점 03. 비밀유지의무 ······································ 88
★★★ 쟁점 04. 경업금지의무(경업피지의무) ···························· 90
★★★ 쟁점 05. 근로조건의 명시(근로조건의 명시의무) ··················93
★★★ 쟁점 06. 포괄임금제(포괄임금산정제도) ································· 97
★★★ 쟁점 07. 위약금 예정의 금지(위약예정의 금지) ···················· 102
★★☆ 쟁점 08. 전차금 상계의 금지 ······································· 105
★★☆ 쟁점 09. 채용내정 ····················································· 107
★★★ 쟁점 10. 시 용 (試用) ······································ 109
제 2 편 제 3 장 취업규칙
★★☆ 쟁점 01. 취업규칙 ················································· 111
★★☆ 쟁점 02. 취업규칙의 변경 ·········································· 116
★★★ 쟁점 03. 취업규칙의 불이익변경 ··························· 118
★★★ 쟁점 04. 동의를 받지 못한 취업규칙의 불이익변경(일방적 불이익변경의 효과) 125
★★★ 쟁점 05. 변경된 퇴직금 지급률에 따르기로 하는 단체협약 ········131
제 2 편 제 4 장 임 금
제1절 임금의 의의
★★★ 쟁점 01. 임금의 의의(임금의 정의) ······························· 135
★★★ 쟁점 02. 상여금과 임금?통상임금 ········································ 139
★★☆ 쟁점 03. 평균임금과 통상임금 ····························· 143
★★★ 쟁점 04. 평균임금 ······················································· 144
★★★ 쟁점 05. 통상임금 ················································ 149
★★★ <추가> 통상임금 판단기준 ································ 154
★★★ <추가> 임금유형별 통상임금 판단기준 ···················· 156
★★★ 쟁점 06. 통상임금 제외 합의 ·································· 158
★★★ <추가> 정기상여금의 통상임금제외합의, 추가수당청구와 신의칙 ············ 160
제2절 임금수준의 보호
★☆☆ 쟁점 07. 임금 수준의 보호 ······························· 162
★★★ 쟁점 08. 휴업수당 ················································· 165
제3절 임금의 지급방법
★★★ 쟁점 09. 임금의 지급방법(임금 지급의 방법, 임금지급방법의 보호) ·········· 170
★★★ 쟁점 10. 임금 전액지급의 원칙 ··························· 175
제4절 퇴직급여제도
★★☆ 쟁점 11. 퇴직급여제도 ·································· 178
★★★ 쟁점 12. 퇴직금 분할 약정에 기하여 지급한 퇴직금 명목 금원 ·········· 188
★★★ 쟁점 13. 평균임금 제외 합의 ································· 192
★★☆ 쟁점 14. 퇴직금중간정산제 ····························· 193
제5절 임금채권의 보호
★★☆ 쟁점 15. 임금채권의 보호 ··························· 196
★★★ 쟁점 16. 임금채권의 우선변제 ····················· 201
★★☆ 쟁점 17. 사업?공사의 도급과 임금 지급의 특례 ········207
★☆☆ 쟁점 18. 임금체불에 대한 제재와 구제 ······················ 211
제6절 연봉제
★★☆ 쟁점 19. 연봉제 ······················ 213
제 2 편 제 5 장 근로시간과 휴식
★★★ 쟁점 01. 근로시간과 휴식 ··································· 218
★☆☆ 쟁점 02. 탄력적 근로시간제 ······································· 226
★☆☆ 쟁점 03. 선택적 근로시간제 ································ 231
★★★ 쟁점 04. 연장근로(시간외 근로) ····································· 234
★★★ 쟁점 05. 합의연장근로(통상연장근로) ····················· 236
★★★ 쟁점 06. 응급연장근로(특별연장근로, 인가연장근로) ················ 240
★★★ 쟁점 07. 특례사업연장근로(근로시간 및 휴게시간의 특례) ··············· 243
★★★ 쟁점 08. 가산임금 ······························································ 245
★★☆ 쟁점 09. 보상휴가제(대체휴가제도) ························· 248
★★☆ 쟁점 10. 주휴일 ······················································ 250
★★☆ 쟁점 11. 연차유급휴가(유급연차휴가) ························257
★★☆ 쟁점 12. 근로시간제도의 적용제외(근로시간 규정의 적용제외) ········268
★★☆ 쟁점 13. 근로자대표와의 서면합의 ····································· 272
제 2 편 제 6 장 인사와 징계
★★★ 쟁점 01. 전 직 (轉職) ················································ 276
★★☆ 쟁점 02. 전 출 (轉出) ··············································· 281
★★★ 쟁점 03. 전 적 (轉籍) ··················································· 285
★★★ 쟁점 04. 휴 직 (休職) ··········································· 288
★★★ 쟁점 05. 직위해제(대기발령) ···················································· 291
★★★ 쟁점 06. 대기발령에 이은 당연퇴직의 정당성 ··············· 295
★★★ 쟁점 07. 징 계 ··························································· 297
제 2 편 제 7 장 근로관계의 종료
★★★ 쟁점 01. 근로관계의 종료 ································· 309
★★★ 쟁점 02. 정당한 이유 없는 해고의 금지(해고의 “정당한 이유”의 의의) ··· 314
★★★ 쟁점 03. 경영상 이유에 의한 해고(경영해고, 정리해고)의 제한 ················· 319
★★★ 쟁점 04. 경영상 이유에 의한 해고(정리해고)에서 “긴박한 경영상의 필요” ···· 325
★★★ 쟁점 05. 경영상 이유에 의한 해고(정리해고)에서 “근로자대표”와의 “협의” ··· 330
★★★ 쟁점 06. 해고 시기의 제한 ························································ 335
★★★ 쟁점 07. 해고의 예고(해고예고) ················································ 341
★★☆ 쟁점 08. 해고예고위반의 효과(해고예고 의무 위반의 효과) ························ 345
★★☆ 쟁점 09. 해고예고 의무의 예외(즉시해고) ·························· 347
★★★ 쟁점 10. 해고의 서면 통지(해고사유 등의 서면통지) ··················· 351
★★☆ 쟁점 11. 사직 및 합의해지 ·················································· 354
★★★ 쟁점 12. 정년제 ······················································ 356
★★★ 쟁점 13. 근로계약 기간의 만료 ··································· 359
제 2 편 제 8 장 부당해고등의 구제
★★★ 쟁점 01. 부당해고등의 구제 ·············································· 362
★★☆ 쟁점 02. 부당해고의 입증책임 ·················································· 371
★★★ 쟁점 03. 구제절차 중 근로계약관계 종료시 구제이익 ································ 373
★★☆ 쟁점 04. 금전보상제(부당해고와 금전보상, 금전보상 명령) ························ 375
★★☆ 쟁점 05. 근로기준법 제33조의 이행강제금 ··································· 378
제 2 편 제 9 장 기업변동과 근로관계
★★★ 쟁점 01. 회사합병?사업양도(영업양도)와 근로관계 ··························· 382
★★☆ 쟁점 02. 영업양도시 신?b구 사업주의 책임범위 ························ 389
제 2 편 제 10 장 비정규근로자
★★☆ 쟁점 01. 비정규근로자 ··························································· 391
★★★ 쟁점 02. 기간제근로자(계약직 근로자) ······························· 393
★★☆ 쟁점 03. 단시간근로자 ··················································· 400
★★★ 쟁점 04. 초단시간 근로자 ··········································· 404
★★★ 쟁점 05. 파견근로자 ···························································· 405
★★★ 쟁점 06. 파견근로자 노동조합의 단체교섭 요구에 대한 응낙의무 ·········· 417
★★★ 쟁점 07. 하청업체 근로자(도급근로자) ····································· 419
제 2 편 제 11 장 재해보상
★★☆ 쟁점 01. 재해보상··············································· 424
★★★ 쟁점 02. 출?b퇴근 중에 발생한 재해와 업무상 재해·················· 437
★★☆ 쟁점 03. 근로기준법상의 재해보상과 다른 법률에 의한 보상?b배상의 관계 440
제 3 편 집단적 노사관계법 (노동단체법)
제 3 편 제 1 장 노동조합
제1절 노동조합 총설
★☆☆ 쟁점 01. 노동조합 총설 ·················································· 449
제2절 노동조합의 보호요건
★★★ 쟁점 02. 노동조합의 보호요건 ······································ 452
★☆☆ 쟁점 03. 쟁의단의 법적 지위 ······································· 460
★★★ 쟁점 04. 노조법 제2조 제4호 라목 ································ 461
★★★ 쟁점 05. 노조법 제2조 제4호 라목 단서의 적용범위 ························ 465
★★☆ 쟁점 06. 복수노조 ····························································· 467
★★★ 쟁점 07. 노동조합의 형식적(절차적) 요건 ································ 470
★★★ 쟁점 08. 노동조합 설립신고에 대한 행정관청의 심사정도(심사방법) ········· 475
★★★ 쟁점 09. 법외조합(법외노조)의 법적 지위 ································· 478
제3절 조합원의 지위
★★☆ 쟁점 10. 조합원의 지위 ······································· 483
★★★ 쟁점 11. 조직강제 ························································· 492
제4절 노동조합의 운영
★☆☆ 쟁점 12. 노동조합의 운영 ································· 500
★★★ 쟁점 13. 노동조합의 규약 ········································ 503
★★★ 쟁점 14. 노동조합의 기관 ······································ 508
★★☆ 쟁점 15. 노동조합의 재정 ··································· 514
★★☆ 쟁점 16. 노동조합의 통제 ·························· 518
제5절 조합활동의 보장
★★☆ 쟁점 17. 조합활동의 보장 ····································· 522
★★★ 쟁점 18. 조합활동의 정당성 ·············································· 525
★★★ 쟁점 19. 조합활동의 수단(태양)의 정당성 ······································· 529
★★★ 쟁점 20. 노조전임자(노조전임자제도, 노조전임제도) ···························· 535
★★☆ 쟁점 21. 노조전임자 급여 ································· 544
★★☆ 쟁점 22. (유급)근로시간면제제도 ··························· 546
★★★ 쟁점 23. 조합비공제 조항(조합비공제제도) ······························· 550
제6절 노동조합의 변동
★★☆ 쟁점 24. 노동조합의 변동(노동조합의 합병?b분할?해산?b조직형태변경) ····· 552
★★☆ 쟁점 25. 노동조합의 해산 ······································· 555
★★★ 쟁점 26. 노동조합의 조직형태변경(조직변경) ························· 558
★★★ 쟁점 27. 연합단체 가입?탈퇴의 의결정족수 ······················ 564
제 3 편 제 2 장 단체교섭
★☆☆ 쟁점 01. 단체교섭 ···································· 566
★☆☆ 쟁점 02. 단체교섭의 방식(형태) ···································· 568
★★★ 쟁점 03. 단체교섭의 당사자와 담당자 ······························ 571
★★★ 쟁점 04. 노동조합 하부단체의 단체교섭권 ····························· 576
★★☆ 쟁점 05. 교섭대표노동조합(복수노조와 교섭창구 단일화) ················· 578
★★★ 쟁점 06. 노동조합 대표자의 협약체결권과 인준투표제 ······················· 582
★☆☆ 쟁점 07. 제3자위임금지조항 ······························· 590
★★★ 쟁점 08. 단체교섭의 대상(교섭사항, 교섭대상, 교섭대상사항) ··········· 592
★★★ 쟁점 09. 경영사항이 단체교섭의 대상이 되는지 여부 ·················· 599
★★★ 쟁점 10. 경영사항에 관한 주장을 관철하려는 쟁의행위의 목적의 정당성 · 603
★☆☆ 쟁점 11. 권리분쟁사항 ···································· 606
★☆☆ 쟁점 12. 단체교섭의 대상과 노동쟁의의 대상 상호의 관계 ············ 609
★★★ 쟁점 13. 단체교섭의 방법과 절차 ······························· 611
★★☆ 쟁점 14. 단체교섭거부의 구제(단체교섭의무위반에 대한 구제수단) ······ 616
제 3 편 제 3 장 단체협약
★☆☆ 쟁점 01. 단체협약 ········································ 620
★★★ 쟁점 02. 단체협약의 성립요건 ································· 624
★★★ 쟁점 03. 단체협약의 효력 ········································· 627
★★★ 쟁점 04. 근로자의 권리를 처분하는 단체협약 ······················ 633
★★★ 쟁점 05. 퇴직금결정기준을 소급동의하는 단체협약 ················· 634
★★★ 쟁점 06. 단체협약의 불이익변경 ·································· 637
★★☆ 쟁점 07. 평화의무 ···································· 640
★★★ 쟁점 08. 평화의무를 위반한 쟁의행위의 정당성 ················ 644
★★★ 쟁점 09. 단체협약의 내용 ···························· 646
★★★ 쟁점 10. 인사조항 ······················································ 652
★★☆ 쟁점 11. 단체협약의 효력확장(단체협약의 일반적 구속력) ·············· 658
★★★ 쟁점 12. 사업(장)단위 일반적 구속력 ·················659
★☆☆ 쟁점 13. 지역단위 일반적 구속력 ·········································· 664
★★★ 쟁점 14. 단체협약의 실효(단체협약의 종료) ····················· 668
★★☆ 쟁점 15. 단체협약실효 후 개별적 합의에 의한 근로조건의 변경 ·········· 672
제 3 편 제 4 장 쟁의행위
제1절 단체행동권보장의 규범적 의의
★☆☆ 쟁점 01. 단체행동권보장의 규범적 의의 ······················ 674
제2절 쟁의행위의 의의
★☆☆ 쟁점 02. 쟁의행위의 의의 ··············································· 676
★★★ 쟁점 03. 준법투쟁(준법투쟁과 쟁의행위) ····························· 679
제3절 쟁의행위의 정당성
★★☆ 쟁점 04. 쟁의행위의 정당성 ········································ 684
★★★ 쟁점 05. 쟁의행위의 주체와 정당성 ········································ 685
★★★ 쟁점 06. 쟁의행위의 목적과 정당성 ··············································· 689
★★★ 쟁점 07. 교섭대상과 정당한 쟁의목적의 관계(쟁의행위의 목적과 단체교섭의 대상) ·· 694
★★☆ 쟁점 08. 정치파업의 정당성 ································································ 696
★★★ 쟁점 09. 쟁의행위의 시기?b절차와 정당성 ··········································· 698
★★★ 쟁점 10. 쟁의행위의 수단?태양(쟁의행위의 방법)과 정당성 ························ 703
제4절 쟁의행위의 제한?b금지법규
★★☆ 쟁점 11. 쟁의행위의 제한?금지법규 ·············································· 708
★★★ 쟁점 12. 쟁의행위 찬반투표 ·················································· 714
★★☆ 쟁점 13. 필수유지업무 정지 등의 금지 ········································ 720
제5절 쟁의행위와 책임
★★☆ 쟁점 14. 쟁의행위와 책임 ····························· 724
★★☆ 쟁점 15. 위법한 쟁의행위와 책임 ····························729
★★★ 쟁점 16. 위법한 쟁의행위와 손해배상책임 ······················· 732
★★★ 쟁점 17. 파업과 업무방해죄의 “위력” ···························· 736
제6절 사용자의 쟁의대항수단
★★☆ 쟁점 18. 사용자의 쟁의대항수단 ·········································· 738
★★★ 쟁점 19. 직장폐쇄 ······································ 739
★★★ 쟁점 20. 직장폐쇄의 정당성의 요건(정당성의 한계) ···························· 744
★★★ 쟁점 21. 대체근로의 제한(사용자의 채용제한) ···················· 748
제7절 쟁의행위와 근로관계
★★☆ 쟁점 22. 쟁의행위와 근로관계 ·························· 752
★★☆ 쟁점 23. 쟁의행위와 임금 ··································· 754
★★☆ 쟁점 24. 쟁의행위 불참가자만으로 조업불가능한 경우 근로희망자의 임금 ···· 758
제 3 편 제 5 장 부당노동행위
★★☆ 쟁점 01. 부당노동행위 ································· 760
★★★ 쟁점 02. 불이익취급의 부당노동행위 ·················· 764
★★★ 쟁점 03. 처분이유의 경합(인과관계의 경합, 불이익취급원인의 경합) ······· 772
★★☆ 쟁점 04. 반조합계약(비열계약, 황견계약) ·························· 774
★★★ 쟁점 05. 단체교섭의 거부(단체교섭거부) ······················ 776
★★★ 쟁점 06. 지배개입(지배?b개입) ················································ 783
★★★ 쟁점 07. 사용자의 언론의 자유와 지배개입의 부당노동행위 ········· 793
★★★ 쟁점 08. 부당노동행위의 구제와 제재 ·································796
★★☆ 쟁점 09. 이행명령(긴급이행명령, 긴급명령) ·················· 813
제 3 편 제 6 장 노동쟁의의 조정(調整)
★★☆ 쟁점 01. 노동쟁의의 조정(調整) ··························· 815
★★☆ 쟁점 02. 긴급조정(緊急調整) ····························· 826
제 4 편 노동위원회
★☆☆ 쟁점 01. 노동위원회 ······································· 831
★★☆ 쟁점 02. 노동위원회의 회의별 처리사항 ·················· 838
★★☆ 쟁점 03. 중앙노동위원회의 고유권한 ········································· 841
제 5 편 노동법의 그 밖의 부문
제 5 편 제 1 장 공무원?b교원의 노동3권
★☆☆ 쟁점 01. 공무원의 집단적 노사관계 ······························· 845
★☆☆ 쟁점 02. 교원의 집단적 노사관계 ········································ 851
제 5 편 제 2 장 노사협의제도
★☆☆ 쟁점 01. 노사협의제도 ············································· 857
★☆☆ 쟁점 02. 노사협의와 단체교섭의 이동(異同) ··················· 866
제 5 편 제 3 장 안전보건
★☆☆ 쟁점 01. 안전보건 ························································· 869
★☆☆ 쟁점 02. 안전?b보건관리체제 ···························· 874
제 5 편 제 4 장 연소자와 여성
★☆☆ 쟁점 01. 출산전후휴가(유산?사산휴가 포함) 및 그 급여 ············ 875
★☆☆ 쟁점 02. 육아휴직 급여 및 육아기 근로시간 단축 급여 ·················· 881
제 5 편 제 5 장 고용증진제도
★☆☆ 쟁점 01. 고용보험사업 ······································ 883
★☆☆ 쟁점 02. 실업급여의 종류 ································ 884
★☆☆ 쟁점 03. 구직급여 ·························································· 886