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
노동법의 세계
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
노동법의 세계
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
III. 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
노동법의 세계
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