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In recent years, as diversity in employment type proliferates, demands for amendment to labor law provisions which define the concept of employer and employee are being bought up. To study the validity of this argument, this paper begins with dividing the conditions where the concept of employer and employee matters in labor law into four categories. These are; first, the conditions where the question of so-called economically dependent contractor, who works in situations of which some of typical characteristics of traditional employer-employee relation (e.g. employer's direct control and command over the employee) are dropped out, is an employee or not arises; second, the conditions where user company or principal company formally has direct control or direction over third party company's employee while avoiding all or some of responsibilities in labor law, legally or illegally, like in dispatched or temporary agency employee, or in-site subcontracting employee of the subcontractor; third, the conditions where the parent company determines indirectly terms and conditions of employment of the subsidiary company in business groups but abdicates responsibilities of labor law by taking advantage of the difference in formal legal entity; fourth, the conditions where in the event of business changes, the prospect acquisition company has de facto influence on the terms and conditions of employment of employee in target company while taking absolutely no responsibility in labor law.This paper argues that it is impossible to solve legal problems that occur in these four conditions by amending the definition provisions of employer and employee in the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act. It is because when approaching the problems in this way, contradiction of other provisions in the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act occurs, which would result in inconsistency in other laws.To settle these problems reasonably, instead of amending employer and employee definition provisions of the Labor Standards Act and the Trade Unions and Labor Relations Adjustment Act, it is necessary to clearly distinguish between special issues of each category, and to seek separate solutions in accordance with each condition.
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& & Paradigm to determine the changes in labor law should at least be considered as appropriate research results and the formation of a common paradigm. The established and old paradigm in the labor law, due to new problems and new elements produce the expected crisis that led to the old values, theory and methodology, etc. And it can not answer to new problems and new elements to make a reasonable explanation, the need for reform, to better adaptation to social realities, which entered to the paradigm shift of labor law.& & Research of industrial relations is mainly based on the observation of actors and evolving contexts. Industrial relations scholars select a subject of their interest and carry out their research activities. This choice is greatly influenced by the social concerns or policy orientation of the time in which scholars work. If we construe the main themes of research activities as a paradigm, we may expect that predominant paradigms change with the passage of time, as the power balance of actors such as labor unions or economic and technological contexts alter. By the same token, we could expect that paradigms and social concerns are naturally different from one country to another.& & The sphere of industrial relations has so enlarged that it now covers social protection, work and family. This may be a consequence of changes in the composition of the labor force. In most countries, women, elderly workers or migrant workers occupy a large proportion of the labor force. It is no wonder that industrial relations scholars are increasingly interested in equal opportunity or work-life balance.& & So work itself should be regulated, and a true right to work should be guaranteed. All the workers, employed, delegated or contractors to provide labor, and who are employed or not, they should work for a reasonable amount of time, and in proper working conditions laid down for human life. The labor should have an opportunity to be provided with creativity, beauty, sense of belonging, diversity, and good health. In other words, labor should be the primary mean for self-realization.
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Since the 1. semester 2009, 25 graduate schools of law(law schools) have opened with 2,000 students out of the various major fields of study. At this stage no one can be sure if this law school system for 3 years, which invests the graduates with the right for the examination for the bar, could eradicate the social ills caused by the judicial examination. The introduction of the law school had a serious influence on the education of the remained faculties of law. The faculties of law are now divided into 2 types; the large faculties with the aim of law school entry and the small faculties without the one. The large faculties, which have increased the number of professors for the purpose of the application for law school, have the problems with the curriculum on the grounds of the mismatch between the teaching persons and the subjects. The small faculties are suffering from shortage of students due to the falling birthrate. Therefore their foremost interest is to recruit new students for the time being. The curriculum of labor law, as well as other subjects, is affected by the pending issues of each faculty. The large faculties have the labor law curriculum each semester which is comprised of labor law 1(for example individual labor law system) and labor law 2(for example collective labor law system). While labor law 1 is crowded with students, the labor law 2 falls short of the minimum number of students for the course. In several faculties labor law is composed of the theory(1. semester) and practice(2. semester) which opened separately. In such cases the problem of the half-track class is solved partially. However, one semester is too short to deal with the whole labor law issues. Because of the above mentioned problems, labor law curriculums are consist of largely the principles of Labor Standard Act and the Trade Union Act. The specific problems, which take an increasing interest in the practices, are hard to deal with.
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There is a lot of discussion on the teaching method at law under the Korean law school system. This discussion is resulted from the reflective consideration on the teaching methods conducted widely at undergraduate law lecture level. The main critique on the classical method is that it inclines to theory education too much, not solving the real legal problems relevantly. Not a few scholars have been suggesting case method teaching and problem based lecture, answering this challenge. This article deals with the case method of teaching which optimizes lecture process and efficiency. By the way, when one adopts case method to law lectures, there may be various specific ways of adoption as many as the number of lecturers. Though the manner this article is introducing is only one type of them, the researcher of this article carried out an actual lecture with new case method of teaching, which helped strengthen the credibility of the research outcome. The actual lecture was done in first semester(2008) and 24 students took this class. The lecture process has 5 steps to organize the class systematically and communicate the legal points to the students, using judicial precedents. To evaluate the scholastic achievements and satisfaction of students objectively, the researcher conducted three surveys composed of a few questions, requiring students to give grade on a scale from 1 to 10 and compared the scores of the intermediate examination and those of the final examination. This research suggests following 6 recommendations about the case method of teaching at labor law. First, before lecturing a main legal theory, cast a question connected with the theory on the students. Second, sum up the correspondence hand out by 2 pages. Third, when explain the judicial precedents to the students, stressing out the important points clearly. Fourth, motivate the students to be active in the quiz at the end of lecture. Fifth, be confident of special effect of this teaching method. Finally, develope the various types of examination questions to evaluate the students objectively.
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This article is an analysis of the characteristics of labor relations and labor law regime in Taiwan, so as to provide a broad and comprehensive observation of the Taiwan labor law regime. First, small and medium enterprises (SME) are the main driving forces of the Taiwanese industries. Approximately 70% of the laborers are employed by SME. Since the industries in Taiwan are mostly SME based, it is disadvantageous for the organization of labor unions. Moreover, as the enterprise-wide unions organized by SME are relatively small in size, they have less power and therefore rarely enter into collective bargaining. Most enterprises regulate and decide the labor conditions within the enterprises through the establishment of employment manuals. Such has become one of the main features of the labor relations in Taiwan The key characteristics of the current Labor Union Act in Taiwan are: (1) Mandatory organization of labor union: Where the number of laborers working in the same industry or the same area with the same position is more than 30, an industry-wide union or occupational union shall be organized in accordance with the law (Art. 6); (2) Mandatory participation in labor union: Laborers of the age of 16 and over are obliged to join the labor union (Art. 12 of the Labor Union Act); (3) Enterprise-wise union: The organization of industry-wide union are limited to laborers employed by the same enterprise or factories (Art. 6 of the Labor Union Act); and, (4) Single labor union: Every enterprise or factory shall only be allowed to have one labor union (one labor union per enterprise) and each administrative area shall only be allowed to have one federations of union (Art. 8 of the Labor Union Act). Thus, according to the law, there can only be one union for enterprise-wide union, occupation union, county or city federation of unions, or national union. It should be noted, however, in respect to the aforementioned characteristics of the Labor Union Act, except for the enterprise-wide union, the other three features have not been strictly enforced. In order to solve the issue regarding the inefficiency of collective bargaining, the Taiwanese government has amended the Collective Agreement Act in January 2008, which is expected to come into force together with the promulgation of the amendments of the Labor Union Act and the Labor Dispute Resolution Act in 2009. Article 6 of the Collective Agreement Act introduces the following concepts: (1) the duty to bargain in good faith, and (2) mandatory bargaining obligation. In other words, when the labor union requests the employer to enter into collective bargaining, the employer cannot refuse to proceed with the collective bargaining with the labor union without proper cause. Moreover, during the bargaining process, the parties shall comply with the principle of honest good faith. In the event where the employer breaches its duty to bargain in good faith or its mandatory bargaining obligation, such breach shall constitute improper labor behavior. According to the provisions under the draft amendment of the Labor Union Act, the competent authority may impose consecutive administrative fines on the employer until the employer rectifies its breach. In addition, the draft amendment of the Labor Union Act plans to establish a new relief regime, referring to the relieve regime for improper labor behavior under the Labor Union Act of Japan. In the future, a review committee will be established, which will be in charge for reviewing applications for relief submitted by laborers suffered from the improper labor behavior of the employer. However, until the end of 2007, there were only 71 cases in Taiwan involving collective agreement. It can thus show the weak power of the labor union in collective bargaining. Furthermore, collective agreements can hardly serve as a tool to regulate employment conditions. As such, the Collective Agreem..
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The wage is important element to employee. because employee choose the enterprise where to work based on the it and is motivated to work continuously by it. Specially under capitalism wage is the source of income to determine the level of life. Therefore it is the element which realize the employee"s dignity of labor. Nevertheless the importance of wage, on the constitutional act and labor standard act, general principle to determine wage is not found except minimum wage and appropriate wage. So we need study what the appropriate wage means in view of constitution. The right to work as fundamental right is regulated in the constitutional act and the appropriate wage is on the article of right to work. So, first, the essence of right to work should be studied and on the base of it, appropriate wage should be translated. The essence of right to work is to guarantee the value of labor which is different according to enterprise and keep the condition of labor above to realize the employee"s dignity. The other side, for capitalism is regulated on the constitution act, we will find the meaning of appropriate wage on the base of consideration of capitalism when translation of appropriate wage is studied. Therefore, the appropriate wage is translated into the fare wage. the fare wage is to be paid according to different value of labor which is differentiated by the enterprise. But bad point of fare wage has no principle to determine it. so I propose the contract as method to determine fare wage.
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During the last fifty years in America, legal principles have been developed requiring certain types of bargaining behavior from parties negotiating in good faith. These principles, established through the legal system under American federal labor law, fit within the theoretical structure of negotiation as developed by social scientists. Labor law requires conduct of good faith bargaining, fundamental for all negotiation. Attachment to these procedural guidelines has been proven not only a theoretically sound practice for effective bargaining, but also a practically effective means for negotiation. Labor and management negotiations work within these structures, arriving at mutually agreeable collective bargaining contracts. There is no evidence to suggest that the utilization of these procedural guidelines by negotiators involved in other types of bargaining would not similarly lead to desirable results. Communication, trust, and information are essential elements of any negotiation. The procedures developed under the American National Labor Relations Act enhance communication through requiring in-person meetings of sufficient length with negotiators of sufficient authority to discuss and agree, create trust by requiring good faith, open-mindedness, and compliance with commitments, and facilitate the exchange of information. Observance of the procedural rules by all negotiators will promote effective and efficient negotiation. Therefore Korean labor law should develop such procedural guidelines for effective and desirable negotiation.
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