2016 Smart 노동법 서브

01 노동법 법원으로서의 노동관행 ················································································15
- 대판 2002.4.23, 2000다50701 [퇴직금] (한국전력공사 사례)
02 노동법과 신의성실의 원칙 ·······················································································17
- 대판 1994.9.30, 94다9092 [고용관계존재확인등] (대한조선공사 사례)
03 퇴직금 청구권 사전 포기 약정의 효력 ···································································19
- 대판 1998.3.27, 97다49732 [퇴직금] (아시아나 항공 사례)
04 외국인 근로자의 근로자성 ·······················································································21
- 대판 1995.9.15, 94누12067 [요양불승인처분취소] (포티야 피트 사례)
- 대판 2006.12.7, 2006다53627 판결 [임금] (대동전자 사례)
- 대판 2015.6.11, 2014다88161 판결 [퇴직금등]
05 근기법상 근로자 ······································································································24
- 대판 2006.12.7, 2004다29736 [퇴직금] (부산학원강사 사례)
- 대판 2003.9.26, 2002다64681 [퇴직금] (주식회사 청구 사례)
- 대판 2014.2.13, 2011다78804 [부당징계무효확인] (88관광개발 사례)
- 대판 2014.11.13, 2013다77805 [퇴직금] (한전산업개발 검침원 사례)
06 노조법상 근로자 ······································································································29
- 대판 1993.5.25, 90누1731 [노동조합설립신고수리취소처분취소] (유성관광개발 사례)
- 대판 2004.2.27, 2001두8568 [노동조합설립신고반려처분취소] (서울여성노조 사례)
07 근기법상 사용자 ······································································································32
- 대판 2008.4.10, 2007도1199 [근로기준법위반·노동조합및노동관계조정법위반] (동국대학교의료원장사
례)
- 대판 2008.7.10, 2005다75088 [종업원지위확인] (현대미포조선 사례)
08 노조법상 사용자 ······································································································35
- 대판 2008.9.11, 2006다40935[사용자지위확인] (직업상담원 노조 사례)
- 대판 2011.9.8, 2008두13873 [부당노동행위구제재심판정취소] (한국외대 사례)
09 강제근로의 금지 .폭행의 금지 .공민권 행사의 보장 ·············································38
10 중간착취의 금지 ······································································································41
- 대판 2008.9.25, 2006도7660 [근로기준법위반] (쌍용자동차 취업알선 사례)
11 균등대우의 원칙 ······································································································43
- 대판 2003.3.14, 2002도3883 [남녀고용평등법위반] (평택 타일제조공장 사례)
- 대판 1988.12.27, 85다카657 [정년퇴직무효확인] (우체국 교환원 사례)
- 대판 2003.3.14, 2002도3883 [남녀고용평등법위반] (한국전기통신공사 사례)
12 직장 내 성희롱 금지의 원칙 ···················································································46
- 대판 1998.2.10, 95다39533 [손해배상(기)] (성희롱 대학교수 사례)
13 근로기준법 실효성 확보 방안 ·················································································48
14 근로계약과 근로관계 ·······························································································50
15 위약예정의 금지 ······································································································53
- 대판 2008.10.23, 2006다37274 [약정금] (대흥알앤티 사례)
- 대판 2015. 6. 11, 2012다55518 [전속계약금등반환]
16 전차금 상계금지 .강제저축금지 등 ·········································································56
17 경업금지 약정 ··········································································································58
- 대판 2010.3.11, 2009다82244 [손해배상(기)] (손톱깎이 납품회사 사례)
18 진실고지의무와 경력사칭 ·························································································59
- 대판 2012.7.5, 2009두16763 [부당해고및부당노동행위구제재심판정취소] (진합오에스에스 사례)
19 평균임금 ··················································································································61
- 대판 2005.9.9, 2004다41217 [임금] (현대자동차 사례)
- 대판 1999.11.12, 98다49357 [임금] (프랑스 생명보험 사례)
- 대판 2014.9.4, 2013두1232 [평균임금정정불승인처분취소] (나전광업소 사례)
09 강제근로의 금지 .폭행의 금지 .공민권 행사의 보장 ·············································38
10 중간착취의 금지 ······································································································41
- 대판 2008.9.25, 2006도7660 [근로기준법위반] (쌍용자동차 취업알선 사례)
11 균등대우의 원칙 ······································································································43
- 대판 2003.3.14, 2002도3883 [남녀고용평등법위반] (평택 타일제조공장 사례)
- 대판 1988.12.27, 85다카657 [정년퇴직무효확인] (우체국 교환원 사례)
- 대판 2003.3.14, 2002도3883 [남녀고용평등법위반] (한국전기통신공사 사례)
12 직장 내 성희롱 금지의 원칙 ···················································································46
- 대판 1998.2.10, 95다39533 [손해배상(기)] (성희롱 대학교수 사례)
13 근로기준법 실효성 확보 방안 ·················································································48
14 근로계약과 근로관계 ·······························································································50
15 위약예정의 금지 ······································································································53
- 대판 2008.10.23, 2006다37274 [약정금] (대흥알앤티 사례)
- 대판 2015. 6. 11, 2012다55518 [전속계약금등반환]
16 전차금 상계금지 .강제저축금지 등 ·········································································56
17 경업금지 약정 ··········································································································58
- 대판 2010.3.11, 2009다82244 [손해배상(기)] (손톱깎이 납품회사 사례)
18 진실고지의무와 경력사칭 ·························································································59
- 대판 2012.7.5, 2009두16763 [부당해고및부당노동행위구제재심판정취소] (진합오에스에스 사례)
19 평균임금 ··················································································································61
- 대판 2005.9.9, 2004다41217 [임금] (현대자동차 사례)
- 대판 1999.11.12, 98다49357 [임금] (프랑스 생명보험 사례)
- 대판 2014.9.4, 2013두1232 [평균임금정정불승인처분취소] (나전광업소 사례)
30 도급사업에 있어서의 안전 .보건조치 ·····································································99
- 대판 2009.5.28, 2008도7030 [업무상 과실치사·산업안전보건법위반] (엘지필립스 현장추락사 사례)
31 산재보험법상 재해보상 ··························································································101
32 과로사 ····················································································································104
- 대판 2004.9.3, 2003두12912 [유족급여및장의비부지급처분취소] (코리아 화인 근로자 사례)
33 출 .퇴근 중의 재해 ······························································································106
- 대판 2007.9.28, 2005두12572 전원합의체 [유족급여등부지급처분취소] (여주 번도리 회사 근로자 사
례)
34 직장 동료의 행위로 인한 업무상 재해 ·································································108
- 대판 2011.7.28, 2008다12408 [구상금] (유탑엔지니어링 사례)
35 유족급여와 손해배상책임의 조정 ··········································································110
- 대판 2009.5.21, 2008다13104 전원합의체 [양수금] (기중기 사고 사례)
36 취업규칙의 불이익변경 ··························································································112
37 취업규칙의 불이익변경 관련판례 정리 ·································································116
- 대판 1993.5.14, 93다1893 [퇴직금] (대한지적공사 사례)
- 대판 2009.5.28, 2009두2238 [부당해고구제재심판정취소] (신용협동조합 사례)
- 대판 2003.11.14, 2001다18322 [임금] (동부생명보험 사례)
- 대판 1997.8.22, 96다6967 [퇴직금] (한국산업디자인진흥원 사례)
- 대판 1992.12.22, 91다45165 [퇴직금청구] (강원산업 사례)
- 대판 2001.1.5, 99다70846 [퇴직금] (한국기계연구원 사례)
- 대판 2010.1.28, 2009다32362 [임금등] (한국해양오염방제조합 사례)
- 대판 2002.12.27, 2002두9063 [부당해고구제재심판정취소] (제일택시 사례)
- 대판 2014.6.12, 2014두4931 [부당해고구제재심판정취소] (교통안전공단 사례)
38 전보 .전직처분의 권리남용 여부 판단기준 ··························································121
- 대판 1995.10.13, 94다52928 [해고무효확인등] (중화실업 사례)
39 전적과 근로자의 동의 ···························································································123
- 대판 1993.1.26, 92다11695 [해고무효확인등] (대우캐리어 사례)
40 사용자 명령휴직 처분의 정당성 ·············································································125
- 대판 2005.2.18, 2003다63029 [임금등] (농협중앙회 사례)
41 직위해제(대기발령)과 당연퇴직 ·············································································127
- 대판 2007.2.23, 2005다3991 [부당전보무효확인등] (지엠대우 사례)
42 징계의 정당성 ·······································································································130
- 대판 2010.1.14, 2009두6605 [부당해고및부당노동행위구제재심판정취소] (대한불교조계종 사회복지재
단 사례)
- 대판 1991.7.9., 90다8077 [해고무효확인] (징계위 개회 30분전 통보 사례)
43 사업변동과 근로관계 이전 ····················································································134
- 대판 2002.3.29, 2000두8455[부당해고구제재심판정취소] (대한불교조계종 한국오므론전장 사례)
- 대판 1995.12.26, 95다41659[퇴직금] (생산기술연구원 사례)
44 근로관계의 종료 ····································································································140
- 대판 2015.9.10, 2015두41401 [부당해고구제재심판정취소]
45 경영상 해고의 정당성 요건 ···················································································149
46 단체협약 .취업규칙상의 해고사유 및 절차적 제한 ··············································153
47 노동위원회 판정 ····································································································156
48 진의 아닌 의사표시에 의한 사직.사직의사표시 철회가 ·······································159
- 대판 2000.4.25, 99다34475 [징계면직처분무효확인등] (한국증권거래소 사례)
- 대판 2000.9.5, 99두8657 [부당해고구제재심판정취소] (사회복지법인 사례)
49 기간 형식화 법리와 갱신기대권 ············································································161
- 대판 2007.9.7, 2005두16901 [부당해고구제재심판정취소] (조선일보 사례)
- 대판 2011.4.14, 2007두1729 [부당해고및부당노동행위구제재심판정취소] (시설관리공단 사례)
50 관리용역계약 해지 .당연퇴직과 해고 ···································································163
- 대판 2009.2.12, 2007다62840 [해고무효확인등] (용역회사 사례)
- 대판 1993.10.26, 92다54210 [해고무효확인] (유죄판결 노조위원장 사례)
- 대판 1991.3.27, 90다카25420 [해고무효확인등] (고려화재 사례)
51 시용근로자에 대한 해고.직장 내 성희롱과 징계해고 ···········································165
- 대판 2006.2.24, 2002다62432 [해고무효확인] (씨티은행 사례)
- 대판 2008.7.10, 2007두22498 [부당해고구제재심판정취소] (성희롱 카드회사 지점장 사례)
52 해고관련 판례 쟁점정리 ························································································166
- 대판 2004.2.27, 2003두902 판결 [부당해고등구제재심판정취소] (동아건설산업 사례) 등
53 면직·파면 또는 해임된 공무원의 근로자성 ··························································171
- 대판 2014.04.10, 2011두6998 판결 [노동조합설립신고반려처분취소] (전국공무원노조 사례) 등
54 노조전임자 제도 ····································································································173
- 대판 1995.4.11, 94다58087 [해고무효확인등] (한진중공업 사례) 등
- 대판 1997.3.11, 95다46715 [해고무효확인등] (노조전임자 사례) 등
- 헌법재판소 2014.5.29. 2010헌마606 결정 (타임오프제 헌법소원 사례) 등
55 노동조합의 운영과 활동 관련 판례정리 ································································177
- 대판 2000.1.14, 97다41349 [대의원회결의부존재확인] (전국철도노조 사례) 등
- 대판 1994.2.22, 93도613 [업무방해] (취업시간중 조합활동 사례) 등
- 대판 1991.11.12, 91누4164 [부당노동행위구제재심판정취소] (대선조선 사례) 등
- 대판 2014.8.26, 2012두6063 [시정명령취소] (한국공항공사 사례) 등
56 법외조합 ················································································································180
- 대판 1996.6.28, 93도855 [노동쟁의조정법위반·노동조합법위반·향토예비군설치법위반] (삼성중공업노
조 사례) 등
57 노동조합의 통제권 ·································································································182
58 노동조합의 해산과 조직변경 ·················································································185
- 대판 1997.7.25, 95누4377 [노동조합설립신고사항변경신고반려처분취소] (서울상공회의소 노조 사례)
등
59 노동조합 분회.지부의 단체교섭 당사자 지위 ·······················································187
- 대판 2001.2.23, 2000도4299 [근로기준법위반] (남성운수 사례) 등
- 대판 1998.11.13, 98다20790 [부당이득금반환] (원자력병원노조 사례) 등
60 노동조합 대표자의 협약체결권과 인준투표제 ·······················································193
- 대판 1993.4.27, 91누12257 전원합의체 판결 [단체협약변경명령취소] (쌍용중공업 노조 사례) 등
61 단체교섭의 대상 ····································································································195
- 대판 1994.3.25, 93다30242 [해고무효확인등] (한일개발 사례) 등
- 대판 2003.7.22, 2002도7225 [업무방해] (한국가스공사 사례) 등
62 교섭창구 단일화 절차 ···························································································199
63 성실교섭의무 ·········································································································203
- 대판 2006.2.24, 2005도8606 [근로기준법위반·노동조합및노동관계조정법위반] (서울마주협회 사례)
등
64 단체협약의 의의 및 성립 ······················································································205
- 대판 2001.1.19, 99다72422 [손해배상(기)] (기아자동차 사례) 등
- 대판 2002.8.27, 2001다79457 [임금] (아시아자동차 사례) 등
65 단체협약의 내용과 효력 ························································································208
- 대판 2000.9.29, 99다67536 [상여금] (동부고속 사례) 등
66 단체협약의 해석 ····································································································213
- 대판 2011.10.13, 2009다102452 판결 [임금등] (현대미포조선 사례)
67 단체협약의 구속력 ·································································································215
- 대판 1999.12.10, 99두6927 [부당해고구제재심판정취소] (엘지전선 사례)
- 대판 2003.12.26, 2001두10264 [부당해고및부당노동행위구제재심판정취소] (대우자동차판매 사례)
- 대판 1993.12.21, 92도2247 [업무방해,노동조합법위반] (부산제일교통 사례)
68 단체협약의 종료 ····································································································218
- 대판 2009.2.12, 2008다70336 [해고무효확인등] (한국외대 사례)
69 쟁의행위 일반 ·······································································································221
70 준법투쟁과 쟁의행위 ·····························································································223
- 대판 1994.2.22, 92누11176 [부당노동행위구제재심판정취소] (진성레미콘 노조 사례)
71 정당한 쟁의행위와 면책 ························································································225
- 대판 2014.8.20, 2011도468 [업무방해] (한국철도공사 사례)
72 쟁의행위의 정당성 ·································································································227
- 대판 2001.10.25, 99도4837 전원합의체 판결 [업무방해] (만도기계 사례)
- 대판 2004.9.24, 2004도4641 [업무방해] (한국펠저노조 지부 사례)
- 대판2000.10.13, 99도4812 [업무방해] (전국민주택시노조연맹 사례)
- 대판 2006.5.12, 2002도3450 [집단에너지사업법위반 등] (한국산업단지공단 사례)
- 대판 1994.9.30, 94다4042 [해고무효확인] (삼표중공업 사례)
73 정당성 없는 쟁의행위와 책임귀속 ········································································234
- 대판 1994.3.25, 93다32828,32835 [손해배상(기)] (동산의료원 사례)
- 대판 2011.3.17, 2007도482 전원합의체 [업무방해] (한국철도공사 기관사 사례)
74 쟁의기간 중 대체근로 제한 ···················································································238
- 대판 2000.11.28, 99도317 [근로기준법위반·노동쟁의조정법위반] (동양특송 사례)
- 대판 2008.11.13, 2008도4831 [노동조합및노동관계조정법위반] (건축회사 사례)
75 직장폐쇄의 정당성 ·································································································241
- 대판 2007.12.28,2007도5204 [업무방해·폭력행위등처벌에관한법률위반(공동주거침입)] (서울시 건축
사회 점거 사례)
- 대판 2000.5.26, 98다34331 [임금] (성일운수 사례)
76 쟁의행위와 무노동 무임금 원칙 ············································································246
- 대판 1995.12.21, 94다26721 전원합의체 [임금] (삼척군 의료보험조합 사례)
77 노동쟁의 조정 ·······································································································251
78 부당노동행위 일반 ·································································································257
79 불이익취급 ·············································································································260
- 대판 1996.7.30, 96누587 [부당노동행위구제재심판정취소] (승마육운노조 조합장 사례)
- 대판 1999.11.9, 99두4273 [부당노동행위구제재심판정취소] (금성택시기사 사례)
- 대판 2009.3.26, 2007두25695 [부당노동행위구제재심판정취소] (전국언론노조 사례)
80 유니온 숍(비열계약) ······························································································264
- 대판 1996.10.29, 96다28899 [노동조합원확인] (한창여객 사례)
- 대판 1998.3.24, 96누16070 [부당노동행위구제재심판정취소] (한국전력기술노조 사례)
- 헌법재판소 2005.11.24, 2002헌바95·96, 2003헌바9(병합) [노조법 제81조 제2호 단서 위헌소원]
(부산택시노조 사례)
81 단체교섭 거부.해태 ·······························································································267
- 대판 2006.10.26, 2004다11070 [손해배상(기)등] (신선대터미널 사례)
82 지배.개입 ··············································································································271
- 대판 1997.5.7, 96누2057 [부당노동행위구제재심판정취소] (신영택시노조 사례)
- 대판 1998.5.22, 97누8076 [부당노동행위구제재심판정취소] (전쟁기념사업회 사례)
- 대판 2010.3.25, 2007두8881 [부당노동행위구제재심판정취소] (현대중공업 사내하청노조 사례)
83 부당노동행위에 대한 구제 ····················································································275
- 대판 2014.5.29, 2011두24040 [부당노동행위구제재심판정취소] (연구개발원 사례)
84 공무원과 교원의 집단적 노사관계 일반 ································································279
- 헌법재판소 2008.12.26, 2005헌마971.1193, 2006헌마198(병합) [공무원의 노동조합 설립 및 운영
등에 관한 법률 위헌확인 등] (전국공무원노조 사례)
85 노사협의회의 근로조건 형성권 존부 등 ································································281
- 대판 1994.6.24, 92다28556 [퇴직금] (포항종합제철 사례)
86 노동위원회 구제명령과 민사소송 ··········································································283
- 대판 2006.11.23, 2006다49901 [해고무효확인및임금] (면직택시운전기사 사례)
87 기간제 근로관계 ····································································································285
- 대판 2014.2.13, 2011두12528 [부당해고구제재심판정취소] (한국철도공사 사례)
- 대판 2012.3.29, 2011두2132 [차별시정재심판정취소] (국민은행 사례)
- 대판 2014.9.24, 2012두2207 [차별시정재심판정취소] (한국철도공사 사례)
88 단시간 근로관계 ····································································································289
- 대판 2014.11.27, 2013다2672 [해고무효확인] (한국마사회 사례)
89 불법파견과 직접고용의무 ······················································································291
- 대판 2010.7.22, 2008두4367 [부당해고및부당노동행위구제재심판정취소] (현대자동차 사례)
- 대판 2015.2.26, 2010다106436[근로자지위확인] (현대자동차 사례)