Ⅳ. The Sources of Labor Law and Order of Priority

1. Types of labor laws

The sources for labor laws are reference rules that judges use in court as the criteria for judgment in disputes related to labor law. These sources are: ① the Constitution, ② related labor laws, ③ common law, ④ self-governing rules, and ⑤ international labor law.

2. Conflicts in the sources of laws and their effects

(1) Principle of priority on higher laws
Higher laws are preferred to lower laws(e.g. the Constitution is higher than the Labor Standards Act).

(2) Principle of priority on special laws
Special laws are preferred to general laws(e.g. Labor Standards Act > Civil Law).

(3) Principle of priority on most recent laws
When two laws are applicable to the same situation, the law that has been most recently revised is preferred.

(4) Principle of priority on better conditions
Labor Laws promoting better working conditions are preferred over the ‘principle of priority on higher laws.’

Ⅴ.The Principle of Priority on Favorable Conditions and Applciations

1. Principle

Recently, court rulings have emerged that have overturned existing practices, causing confusion in the workplace. Even if changing the rules of employment disadvantageously proceeds legally and with the consent of the majority of workers or consent of the union representing the majority, the labor contract with more favorable conditions continues to apply to workers who do not agree. In the past, when employers change rules of employment in a way that lowered working conditions to overcome internal and external difficulties, as long as they have gone through the procedures required to change the rules disadvantageously, the new rules apply to all workers in the entire company even if there are some opposed. However, recent Supreme Court rulings have overturned this practice by ruling that a labor contract with more favorable terms for even a small number of workers who disagree with changes to the rules of employment continues to apply. The background to these precedents is the principle that workers and employers must decide working conditions freely and on equal terms (Article 4 of the Labor Standards Act, or LSA), and when there is disagreement regarding the new rules and labor contracts, the labor contract with the more favorable conditions takes priority (Article 97 of the LSA).

2. Relations with labor contracts

(1)Labor contracts that are disadvantageous when compared to the Labor Standards Act

Parts of labor contracts that set working conditions below the standards set by the Labor Standards Act are null and void. The invalidated sections are to comply with the Labor Standards Act (Article 15 of the LSA). The labor contract outlines working conditions freely determined by the worker and the employer, but if such working conditions do not meet the mandatory regulations set forth in the Labor Standards Act, they will be invalidated, and that section of the labor contract will be changed to comply with the Labor Standards Act. Therefore, the working conditions specified in a labor contract should be the same or better than those outlined in the Labor Standards Act.

(2) Labor contracts that are disadvantageous when compared to the collective agreement

Any part of a labor contract that violates the working conditions and standards for treatment of workers stipulated in the collective agreement shall be invalid. The invalidated part(s) shall comply with the standards set by the collective agreement (Article 33 of the Trade Union Act: TUA). This regulation describes the normative effect of collective agreements, and explains that they have a compulsory and supplementary effect on the content of contracts. The compulsory effect is manifested by invalidating any part of a labor contract that violates the standards for working conditions and other treatment prescribed in the collective agreement. The supplementary effect is manifested by the fact that if there are no relevant provisions in the labor contract for handling a specific issue, the standards set in the collective agreement apply. If a labor contract is more favorable than a collective agreement, the question arises as to whether the more favorable section(s) of the labor contract will apply in accordance with the principle of preferential conditions. This section has a normative effect because the working conditions specified in the collective agreement are the product of the determination of working conditions concluded on an equal basis by labor and management. Therefore, within the scope of the general binding force of collective bargaining, the favorable conditions specified in the labor contract are excluded and the contents of the collective agreement apply.

(3) Labor contracts that are more favorable than the rules of employment

Parts of labor contracts that set working conditions below the standards set by the rules of employment are invalid. Invalidated sections shall be changed so they comply with the rules of employment (Article 97 of the LSA). The labor contract should be maintained but with the same or more favorable conditions as the rules of employment. This also applies in the reverse situation. Therefore, if the rules of employment and the labor contract differ in terms of working conditions, the advantageous terms of the labor contract will apply first. There are some related court rulings: (1) Even if the revised rules of employment no longer require that a full-time allowance be paid, which had been required under the labor contract, for individual workers who do not agree to the change, the advantageous parts of the labor contract take precedence over the revised rules of employment. (2) In a case where a wage peak system was introduced as part of rules of employment that were revised with collective consent but after specifying the annual salary in an individual labor contract with a particular worker, the existing individual labor contract takes precedence over the rules of employment, despite the latter being revised with collective consent. (3) Even if the rules of employment are changed through legitimate procedures, they do not take precedence over existing advantageous employment contracts unless special circumstances dictate otherwise, such as the employee agreeing to the relevant change in the rules of employment.

Ⅵ. Labor Laws in Relation to Other Laws

1. In relation to Civil Law (Additional Translation)

Labor laws originating from the principles of civil law are generally applied under the Civil Law . Though civil law is based upon principles such as the absolute principle of ownership, the principle of freedom to contract, and the principle of self-responsibility in accidents, this has only induced greater social inequality between people, and labor laws have been constituted to reform this inequality. Accordingly, principles under Civil Law have been applied to working conditions unregulated by labor law. These include the principle of good faith and sincerity and the principle of preventing the abuse of rights.
The employment section of the Civil Act has only 9 provisions in total, but is considered general law in labor law. In our capitalist economic system, as the Civil Act is based on the principle of freedom of contract, one party to the contract can freely terminate the contract on the premise of damages or a failure to meet certain requirements. However, if employment contracts allow employers, who are in a socially and economically superior position to employees in the labor contract relationship, to unilaterally dismiss employees, those employees whose ability to maintain a livelihood is based on earnings from employment are threatened with unemployment at any time, which places them in an unequal and oppressive relationship The Labor Standards Act was enacted under the Constitution to reduce the unequal nature of these relationships and to guarantee the basic right to human dignity and to pursue happiness.

2. In relation to criminal caw (Punishment for Off-limit)

Labor laws are regulations that must be strictly adhered to since punishment will result if violated. Given that working conditions regulated under the Labor Standards Act are mere minimum standards, violators are subject to criminal punishment in the event of any violation.
In cases where workers’ rights disagree with the employer’s ownership rights, a labor union’s counteraction, such as a strike for the betterment of working conditions, is exempt from civil or criminal liability. However, any violence or destruction caused as a result of labor union activities will not be tolerated(Article 3 & 4 of the Trade Union Act)