외주위탁사업의 이전과 근로관계의 승계 ― 영국의 입법론과 시사점 ―

초록

This paper considers the increasing important area of law that deals with the position where businesses are transferred from one employer to another, specially service provision change(SPC). Korea Supreme Court decisions have an negative attitude on automatic transferring the contract of employment from the transferor employer to the transferee in case of SPC. But, Council Directive (EEC) 77/187 and ECJ have showed an affirmative attitude toward employment protection issues. In addition, British courts and employment tribunals have taken a much more positive view of employment protection, which induces an epoch making legislation of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Regulations apply where there is a relevant transfer of an undertaking, business or part thereof and also a SPC situated in the UK. Service provision change is defined in reg3(1). Even though the English legal system is somewhat different from our country's system, her legislational breakthrough of SPC is an good example for reference. This Article sums up her legal method to three suggestions. First, requirements for employment protection should be as simple as possible. Second, employment protection may not apply to the case where the activities consist wholly or mainly in the supply of goods for the client's use. Last, the associated liabilities among plural transferees should be decided by the court decision, not by the legislational tools.

키워드