배움과 공유의 시간

 Immediate release (execution from disciplinary action)

(1) Overview of disciplinary dismissal

a question of the efficacy of the employment rules
In the event of a problem with the validity of the company's employment rules, the cancellation of contracts made on the basis is likely to be recognized as illegal, no matter how legitimate reasons for dismissal exist. Therefore, the existence of legal and valid employment rules is a basic precondition for the exercise of disciplinary dismissal.

Design of Discipline Penalty Clause in Employment Rules
The Regulations for Punishment of Violation of Discipline consists of four parts: the Regulations for the Management of Discipline, the Acts of Discipline, the Disposal of Discipline and the Disposal Procedure. Among these, "violation of discipline" is a key part of the penalty regulation, which the company classifies and lists according to the significant degree of violation of discipline. The punishment methods of violating discipline vary from company to company depending on industry or characteristics, but the methods that are generally employed are as follows:
1 According to the severity of violation of discipline, it is classified into three categories, and the corresponding punishment of the three-story difference is specified.
(a) Violation of the light American flag à Verbal warning sign
(b) Violation of general discipline à Written warning card
(c) Violation of severe discipline à Release of labor contract

2 The concept of cumulative promotion is set between the punishments of the third floor so that if the punishment of the lower level is repeated, the punishment of the next level is promoted and executed.
(a) a cumulative two-time verbal warning à a written warning;
(b) Twice a written warning, à Release of labor contract

the punishment of habitual misdemeanors
Attention should be paid to issuing warnings to employees for violations of discipline " 규, 不 ((, 不, 不) ( 작은, 반복, 반복 斷 斷 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복 반복." In case of violation of each discipline, the entity shall issue a written penalty sheet in the corresponding form to require the employee to sign it and readjust the discipline violation management system so that a higher number of disciplinary actions can be executed if the number of accumulated schedules is reached within a certain period of time.

[Excuse] the dismissal of a habitual minor offender
The parent company is not allowed to play computer games while on duty, and the first discovery is considered to be part of a written warning, the second strict written warning, and the third discovery to be a serious violation of the rule system, and the labor contract is lifted. S, a computer game buff, was caught three consecutive times while playing computer games, and was eventually fired. S filed for labor arbitration, claiming that playing computer games was not an act of right, but not enough to terminate a labor contract.
(labor arbitration)
It was very clear in the company's rule-making system and judged that there was nothing unreasonable, so it rejected S's.

(2) Types of disciplinary dismissal

1 Strict violation of company employment rules

Workers may be fired only if they "seriously" violate employment rules. Therefore, considering its industry and characteristics, the company should specifically list what constitutes a "grave violation" in its employment rules.
A typical workplace, for example, is where you set smoking on duty as a serious violation of discipline.
It's too much, but it can be stated that a chemical plant or gas station can be fired at any time. In addition, for a position as a pilot or bus driver of an airline, anyone would be able to accept the offer even if the employment rules specify the reason for dismissal more than three times a month.
China's labor law stipulates that labor contracts can be lifted without the payment of economic compensation if a worker commits "a severe violation of labor discipline" or "a severe violation of employment rules." However, in the event of termination of the contract, if there is a legal "do-it-yourself" exists, the act of the company's lifting of the labor contract may be recognized by the law enforcement agency as "disabling the law."
In the event of a breach of duty, the employee may demand to the entity either continuing to carry out the contract (return) or 2 any payment of economic compensation equal to twice the economic compensation (Article 48 of the Labor Contract Act).

[Definition of severity violation]
Violation of severe discipline means that workers' violations of discipline exceed the "general" level, reaching the "grave" level. In this case, the company does not have to immediately terminate the contract and pay economic compensation. The most severe punishment for workers who violate discipline is disciplinary action, and in this case it is highly likely to be directly linked to a labor lawsuit.

[Specification of employment rules for violation of the strict discipline]
Since the company manages its daily management on the basis of the rule system (employment rules), the employment rules are no different from in-house laws, and the importance of them need not be mentioned. If the company terminates the contract on the grounds of "grave breach of discipline", it shall, in the "employment rules," find the reasons for the corresponding termination of the contract. . It is necessary for the company to list as specifically as possible violations of the severe discipline in consideration of the type of business or

[Case] If the employment rules are not prescribed for disciplinary action, risk of illegal dismissal
A physical clash also took place after an employee argued with a customer at a department store. The employee was fired for causing serious damage to corporate profits, which was followed by a request for labor arbitration. The employee claimed that the act was not clearly defined as a serious breach of discipline in the company's rule system, and the company could not submit evidence to refute it, which eventually resulted in a substantial amount of compensation.
(Explain)
For vendors, the rule system must specify "severe arguments with customers and physical collisions" as a serious breach of discipline that can be broken off.

2 In the event of a serious damage to the company due to negligence or misconduct,

It refers to workers committing severe malpractice by failing to perform their duties properly, or using their duties to seek dishonest gains, causing serious damages to the company. For this to happen, the criteria must be specified, first of all, as to what extent it must be recognized as a "significant loss."
In order to achieve this type of contract termination, a combination of the following two factors is required, and causality is required between the two:
(a) the occurrence of severe negligence or misconduct;
For example, in the event of a job failure that results in significant property damage to the company, careless work may include large quantities of defective goods, damage to tool facilities, rebate behavior, and leakage of commercial secrets.
(b) objective data on significant losses (amounts);
The company needs proof of the economic loss caused by the company, and the employment rules also provide evidence.
Specifications are required for the basis of significant losses.

[Set the Criteria for Major Damage]
China's labor laws allow "significant damage" to be defined as an internal rule system according to the circumstances of each company. The company may stipulate in the employment rules the standard of "significant harm," but it must be within a fair and reasonable range, and in the event of a labor dispute, it will be assessed again by the Labor Arbitration Commission or the court. If the "significant impairment" criterion defined by the entity is absurd and unreasonable in terms of social common sense, there is an unrecognized risk.

[Slight condolence on labor law]
Article 25: The "serious damage" of this condolence shall be defined by the internal rules of the enterprise. Because of the different types of entities, the definition of severe impairment varies widely, making it difficult to give a unified interpretation of severe impairment. In the event of a labor dispute, the Commission for Arbitration of Labor Disputes shall conduct an assessment of the significant damages stipulated in the Regulation.

[Company defeat] Major damages due to negligence - absence of a standard for loss amount
K is a welder of a machine company, one day he committed a mistake during the welding process, which led to the scrapping of a steel pipe in production, resulting in a loss of 6,000 pounds. The company lifted the labor contract on the grounds that K strictly violated the company's operating regulations, resulting in severe losses to the company. K filed the suit in protest, and the court ruled that the company's lifting of labor contracts did not conform to the legal regulations, judging that the losses in question did not fall under severe damages.
(Explain)
It is clear that K has violated the company's operating regulations, resulting in a loss of 6,000 pounds. However, the company's rule system did not specify the standard amount of severe losses. During the course of the lawsuit, K was able to gain the court's support by claiming that the loss of 6,000 pounds in a large company was not a severe loss.
…………………………………………………………………………………………………………
[Company Winning Case] Major damages due to manipulation - setting the standard for losses in employment rules
J is in charge of the operations of the factory as the head of the factory. The company's rule system stipulates that if an individual's work error causes a loss of more than 50,000 pounds to the company, the company shall be subject to a severe loss and shall have the right to terminate the labor contract. One day in February 2008, J stopped production lines when he went to work after drinking alcohol, resulting in a loss. The company terminated the contract, and J applied for labor arbitration but was rejected.
(Explain)
In this case, the company was able to win the support of the Labor Arbitration Commission because it had previously fixed the category for severe losses in the rule system (over 50,000 units).

a double-time job

China's labor laws have no ban on "commitment." The fact that he did double duty unconditionally cannot be reprimanded, but only if there is objective evidence that the job had a significant impact on the completion of his duty, or if he has been found to have continued to do so in defiance of the order, despite banning him from doing so.
In the case of paragraph 1 above, it is difficult for the company to secure evidence that it was also a double job because it was usually done in secret, and it is not easy to prove it objectively either that the job had a significant impact on the completion of the job.
In contrast, in the case of paragraph 2, once the correction notice is given and rejected, the employee can be fired.
Therefore, it is necessary to secure relevant evidence such as the delivery and rejection of the correction notice, and to present only the evidence that the company has labor relations with other companies. The problem, however, is that it is very difficult to secure the evidence since concurrent activities are conducted in secret. Therefore, it is important to recognize that layoffs due to double reasons are likely to be easy on the surface, but in practice, it is very difficult to meet legal requirements.

(1) Labor contractingism

Until the Labor Contract Act came into force in 2008, small and medium-sized companies did not properly comply with the labor contract’s arrest and social insurance premium burden. Because of this phenomenon, there have been many cases of unfair labor in rural areas and foreign spending where even the fact of the existence of labor relations is not recognized in court even if injured in a fantasy accident. The labor contract law, which went into effect in 2008, designed companies to pay punitive compensation to workers when they hire them without signing labor contracts
The labor contract law sharply increased the law's violation of the law to the point that it is virtually impossible to hire without signing a written contract. The grace period for the signing of a labor contract is one month from the date of hiring workers or continuing to hire them after the termination of the contract. From the point of exceeding one month, the entity will face a lifetime employment risk after one year, as well as a double pay reimbursement.

The labor contract is signed from an equal relationship to a negotiating match, and once signed, it turns into a subjugation relationship of "command-submission." However, if some of the provisions of the arrangement are required to be changed during the contract period, they face the difficult problem of having to change the agreement back to an equal relationship. The Labor Contracts Act clearly stipulates the conclusion of written Change Consultations, which imposes many restrictions on companies that frequently need the rational placement and adjustment of personnel according to changes in management conditions and the ability of individual employees.

(2) You can specify the grounds for dismissal in the employment rules.

South Korea's Labor Standards Act does not set specific conditions for possible layoffs, but comprehensively stipulates them as "objective and reasonable reasons and cases that are recognized as substantial in social concepts." On the other hand, China's labor contract law stipulates that the specific "why the court can be removed" from the contract as a legal clause. In order to terminate a labor contract, it must comply with one of these legal reasons, and the non-compliance is considered "criminalization."
For this reason, unlike Korea, employment rules play a very important role in China. The labor law gave companies the right to conduct employee management on the basis of establishing employment rules. The company may exercise the right to dismiss workers if they violate the labor discipline stipulated in the employment rules strictly.
However, there are many real limitations to the exercise of the right to fire. For example, even if there is a reason for the removal of a court saying, "A major loss to the company by committing a fraud has occurred, there is a risk of being deemed "law-inflicted" if the company is to have "evidence" to prove the cheating and dismisses the employee without being notified in advance of the critical loss criteria. Therefore, it is very important in China to list in detail what acts constitute reasons for court release in the company’s employment rules and to obtain a notification confirmation from the workers.

(3) Combined operation of contract system and lifetime employment system

The Labor Contract Act limited fixed-term labor contracts to two times only in order to ensure social stability through the promotion of long-term employment relations and stabilization. In other words, they will take the mainstream of employment to long-term labor contracts and an indefinite employment system.
In China, there are generally two forms of fixed-term labor contracts and indefinite-term labor contracts, employing regular workers. Typically, the first time an entity enters into a two to three-year fixed-term labor contract and the user is free to terminate the employment at the end of the first labor contract. However, if a second labor contract is to be renewed, it shall be considered that the verification of the worker has been completed and the company shall comply with the request of the worker to sign a non-fixed contract unless there is a material defect to the worker at the expiration of the contract (the reason for the dismissal of the penalty, the job defect, and the disease).
The conclusion of an indefinite labor contract means that the contract will be converted to an "undated contract" and, in the event of a non-fixed contract, the employment is guaranteed up to the retirement age unless there is a reason for the removal of the law.

(4) Linking the reasons for retirement with economic compensation and economic compensation

China's economic compensation is different from Korea's retirement benefit system. In China, it is mandatory to pay economic compensation on the compensation level, considering that termination of employment due to the circumstances of the management upon termination of the contract due to the causes of management and termination of employment at the time of maturity resulted in unemployment by other parties, and there is no need to pay for voluntary retirement. If a company disposes a worker without permission and is judged to be "dismissed" in a labor action, it shall pay the worker an economic reward equal to twice the economic compensation.
On the other hand, in Korea, severance pay can be considered an accounting liability and thus cost can be processed annually as a "retirement benefit allowance" because there is a payment obligation for all workers, but in China, payment is uncertain for each individual and therefore only as a tax expense when the payment is actually made.

(5) Differentiating labor relations from employment relations

Labor and employment relationships are no different in that one party provides labor and the other pays labor remuneration. In China, however, "labor relations" are established only in the employment of workers prior to the retirement age, and only in the form of civil contract with retired people, students and others. The Labor Contract Act obligates workers to sign labor contracts with workers whose labor relations are established. If a labor contract has not been entered into despite the establishment of a labor relationship, it is considered a "factual labor relationship" and the labor law applies regardless of whether the contract is concluded or not.

[the qualifications of the principal in labor relations]

1. User
Labor relations with workers are formed only by a corporation, an organization, that is officially established in China. Individuals do not have a working relationship with employees, even if they are employers. Since "personal employment relations" (private contracts) are established with police departments and drivers hired by foreign residents for private purposes, there is no need to sign labor contracts and there is no restriction of labor laws. .

2. Worker
The qualifications of workers recognized by Chinese law are different from those of Korea. Those aged 16 and over are only entitled to work as long as they are before retirement (excluding repeat students). Labor relations are formed only when those over the age of 16 and graduates of schools do not reach the legal retirement age. Once a worker reaches the legal retirement age, he or she loses his or her legal status as a worker on that date and is not allowed to pay social insurance. If employed by a company after the legal retirement age is exceeded, a labor contract relationship (employment relationship) between the company and the equal entity to which civil law applies is formed. Labor contracts are short for "labor-services contracts" and mean contracts of the nature of exchanging costs with labor services on the basis of persons (students, retirees, etc.) and civil and contract laws, which are outside the scope of workers.

Characteristics of the Labor Law System

With more than 30 local governments on the basis of the socialist system, China operates a labor legal system that is quite different from ours. It has a complicated system that is difficult to understand easily for Korean companies, such as the presence of the central and local laws, written labor contractism and the importance of employment rules. Therefore, it is very dangerous to enter China and manage labor on the premise that it will be similar to Korea. The common sense of Korean labor management is not common in China.

1. The legal system

In China, which has a population and national territory equal to dozens of countries, it is practically difficult to apply the central basic law uniformly across the country because of differences in economic and social development between provinces, the gap in living standards, culture and mindset. Also, after the reform and opening up, the Chinese government has decided to promote economic development.
Under the premise of the "centralization system," the local decentralization, or the local prestige policy of central power, is being implemented.

A case in point of decentralization is the local prestige of the legislative power. The "legislative law" that went into effect in July 2000 allows local governments above a certain level (e.g., provinces, municipalities, and coastal cities) to enact local regulations within the scope of the central law.
The central laws have their respective roles: principle-based (abstract and principled), and local laws (concrete and practical). In addition, the Supreme People's Court frequently promulgates "judicial interpretations" of legal matters related to judicial proceedings, which have a judicial effect and thus are binding on the litigants, as is the law.

Importance of Local Laws

Chinese labor laws are complex and difficult compared to Korea. It is composed of multiple layers of central and local laws, judicial interpretation and administrative regulations, and there are only independent local labor laws in different provinces, even different local law enforcement agencies differ in their application standards.

The minimum wage and social insurance payment rates vary from region to province, and the payment and conditions of high-temperature allowances and heating costs are set differently depending on which climate zone is located. The same labor dispute issues are often subject to different sentencing standards if the region is wrong.
For this reason, China, unlike our country, puts "local law" before "central law" in the actual labor scene. The central law defines only large legal boundaries in principle, and the tax rules for implementation are established and operated independently by each local government. For this reason, the local labor and judicial authorities are also making administrative or judicial decisions by prioritizing local laws. .

Since most of the Chinese labor-related data we encounter frequently centers on the basic laws and administrative laws of the central government, it is not helpful to the labor management of companies operating in certain provinces. Therefore, on-site labor management, it is necessary to check and verify the important local regulations in the areas in which it is advancing, as well as the central laws. Labor management without grasping local laws and administrative notices may face labor disputes or be in a situation where labor costs are overpaid.

administrative notice of local government
Companies entering China must have a clear grasp of the various administrative notices promulgated by the local local government. This is because laws and administrative notices related to labor and social security systems continue to change in content or are updated regularly each year.
For example, for "the average monthly wage of a former worker" which is the basis for the payment of social insurance premiums, the figures are regularly issued by local governments in the form of "notifications" each year. Failure to do so may result in errors in labor-related work, including social insurance payments and calculation of economic compensation. It should also be noted that the payment rates of social insurance, the minimum wage standard and the number of days of legal paid leave are also subject to different local standards, and that the content continues to fluctuate on a regular and irregular basis.

Core of the Labor Contract Law - Reparations to the Workers in the Case of management misconduct

To enhance the effectiveness of law enforcement, the Labor Contracts Act simply and clearly stipulated the losses (punishment) that a company would incur in the event of an offence and the benefits (reward) that a worker would gain from it.
It is designed to pay compensation directly to workers if they commit illegal labor activities. This gave workers the opportunity to take "unpaid income" in addition to their wages.
Indeed, since the enforcement of the Labor Contract Act, there have been a number of malicious cases in which workers who have been bitten by some collectivism have been unaware of corporate misconduct in the pursuit of punitive compensation, or have provoked management to file for dismissal.

[The Effects of the Labor Contract Act on Corporate Labor Management]
o Restrictions on the elasticity of employment
- It is difficult to adjust work/wage by obligating labor contract items (work, wages, work place)
- Elastic workforce adjustment due to changes in market and business conditions at any time
o the difficulty of laying off workers
- Difficulty in dismissal if legal cause/evidence/procedure of court proceedings, and burden of double compensation for illegal dismissal
- Increase in staff and costs as evidence is secured and legal procedures are implemented.
o prolonged and rigidity in labor relations;
- the increase in lifetime employment due to prolonged labor contracts and time lapse.
- Difficulty in selection and personnel metabolism of low performers
o Flooding of labour litigation
- Increased malicious lawsuits targeting poor corporate management and loopholes
- Retroactive claims against past unfair treatment are filed at the time of retirement.

the rise of workers' rights

The sense of workers' rights in the labor market was greatly enhanced in 2008 due to the effectuation of the Labor Contract Law, the advancement of higher education, and the rapid improvement of economic standards. Companies are having a hard time managing their labor because workers are quick to grasp labor laws and insist on even the smallest details.
Collective labor disputes such as strikes and sabotage are also taking place in a routine manner, and unless workers flock to the streets and destroy facilities, the Bureau of Labor and Public Security are also avoiding active intervention against the backdrop of the government's policy to protect workers.

[Man]

o Frequent individual and group disputes due to increased awareness of rights
the frequency of labor lawsuits based on labor laws.
Difficulty in flexibly adjusting personnel according to changes in management and market conditions
o 80 and 90後 Decrease in the working spirit of new generation employees
Rising expectations such as working environment, training, and power generation space
Avoid simple work, short-term employment and career advancement
o Changing generations of farmers' workers
Unlike first-generation farmers, we expect the city to be settled (lack of the foundation of life in farming villages).
High education and high level of consumption, sensitive to wage treatment, and equipped with a high sense of rights

3. Current Status and Challenges of Human Resources Management in Korea

Korean companies in China are now facing an uneasy reality. Not only are employees clearly aware of their rights, but they are increasingly weighing and holding on to their rights and rights protection issues, and their needs exceed those of the lowest levels stipulated by the law.
In addition, unlike Koreans, who have low workforce liquidity, narrow job spans and lifetime job expectations, the Chinese value the development of self-carrier over short-term compensation and position at work, and a strong sense of individualism and rights protection, so lax labor management and seniority pay systems like Korea are bound to face major challenges after a few years of initial start-ups.

the limitations of intetation
Even if a loose Korean-style personnel management system is applied in the early days of the start-up of the Chinese corporation, it does not have any major problems. However, when the number of workers increases and the organization grows, Korean-style in-vitro management faces limitations, the phenomenon of over-staffing and post-inflation occurs, and the aging of the organization (aging, real complacency, metabolic congestion, etc.) is likely to occur after more than 10 years of entry. In accordance with the development of the Chinese corporation, if the personnel system is not localized and organized, we have no choice but to encounter a phenomenon where the control of manpower becomes difficult and the administrative efficiency is reduced by the day.

With the implementation of the labor contract law in 2008, China's labor law has shifted to a way that puts emphasis on protecting workers' rights and job security.
As workers' claims for various compensation for company misconduct became legally possible, labor lawsuits became frequent and the threshold for lifetime employment was lowered, which severely restricted the exercise of personnel rights. The time has come when it is difficult to operate a business properly in China unless the labor law is clearly understood and systematic personnel management is done.

1. The changing times of the labor law system

The Labor Act (1995) and the Labor Contracts Act (2008) are at the center of Chinese labor laws in line with the Korean Labor Standards Act. However, special attention needs to be paid to the fact that the labor law and the period in which the labor contract law were enacted are different. First, let’s look at the background of "labor law."
As the Tiananmen Square Civil War broke out in 1989, the reform-opening policy that had been pursued until then faces a major hurdle. The temporary suspension of reform and opening gained momentum again in the wake of the Namsun Ganghwa in Dengsopyeong in 1992, and the Kang Taek-min and Joo Yong-ki administrations, which were inaugurated just in time, began to pursue reform and openness policies in earnest.

Under the banner of the doctrine of Zen Buddhism advocated by Deng So-pyong, it was at that time that an extreme wave of economic commerce swept across China. The 1995 Labor Act is China's first basic labor law, which was enacted under this period. At the time of legislation, workers were not subject to protection from capitalists because the majority of workers were under the ironclad employment system of state-run companies. In addition, the need to support economic growth and absorb large amounts of rural workers rushing to cities existed, so such an era situation was reflected in the labor law as it was.

Age of Labor Law - Pro-business legislation focused on economic growth
The labor law applied the "principle of contract freedom" of labor-management equality to the fullest extent, as in civil relations, without considering the special nature of labor-management relations in unequal relations due to the inherent imbalance of power.

Based on this, companies were able to improve their employment elasticity and curb labor costs low by repeating their one-year labor contracts, and at that time, Chinese labor officials were mainly engaged in administrative work such as hiring and leaving. In other words, in the era of labor law, because the reaction to the "iron rice bowl" employment practices of the Mao Tse-dong era in the past allowed unlimited employment of short-term contracts based on the "principle of contract freedom," businesses had to concentrate only on production and operations, which in turn contributed greatly to China's growth into a "world factory."

Labor Contract Law - Pro-labor legislation focused on social stability
However, in the shadow of high economic growth, workers who have become socially weak have begun to complain as the gap between the rich and the poor has deepened day by day. The Hu Jintao-Wonjeobao government, which emerged in 2002, shifted the idea of state affairs from "economic growth" to "a harmonious society" and put forward a "pro-people policy" aimed at stabilizing social stability and governing power. In the labor sector, legislation was initiated to protect the weak from the strong capitalists, and the results were in the form of a series of pro-labor legislation, including the labor contract law.

By the way, the Labor Contracts Act, which took effect in January 2008, turned China's labor law environment into a labor-friendly one. Since the Labor Contract Act is a pro-labor law enacted by slanting to workers to correct the imbalance in power between labor and management, companies have been reduced from strong to weak, placed under restrictions in exercising personnel rights and greatly raised labor management risks.

Since then, eight years later, in 2016, workers have contributed to protecting their rights, but there have been moves to revise some rigid provisions in the future, as voices of concern have erupted from the government’s high-ranking and industrial circles that the flexibility of manpower employment and rising employment are causing corporate competitiveness and foreign companies to withdraw.


2. Labor contract law and personnel management

Labor Contract Act - Special Act on the "labor contract part" of the Labor Law
The Labor Contract Act was enacted as a special law, separating only the parts of labor contracts from the labor laws. Thus, the Labor Law, a comprehensive law that defines labor relations comprehensively, remains in effect after the Labor Contract Act took effect. However, due to the advent of the Labor Contract Act, the previous provisions of the Labor Contracts Act, which relate to labor contracts or contradicts the prestigious provisions of the Labor Contracts Act, are suspended.