제1편_노동법총론
제1장 노동법의 의의·········································3
Ⅰ 노동법의 의의···················································3
01 근로자의 보호필요성과 노동법·····················3
02 노동현실과 노동법의 특수성·························4
03 노동법의 기능···············································5
Ⅱ 노동법의 생성, 구성, 법원·······························5
01 노동법의 생성···············································5
02 노동법의 구성···············································7
03 노동법의 법원···············································8

제2장 노동기본권과 권리.의무의 주체············15
제1절 노동기본권···············································15
Ⅰ 근로의 권리····················································15
01 서 설···························································15
02 근로의 권리의 주체·····································16
03 근로의 권리의 내용·····································16
04 근로권의 현대적 해석·································17
Ⅱ 근로3권···························································17
01 의의와 취지·················································17
02 근로3권의 법적 성질과 상호관계················18
03 근로3권의 주체···········································20
04 근로3권의 내용···········································20
05 근로3권의 효력···········································21
Ⅲ 소극적 단결권과 단결강제······························21
01 서 설···························································21
02 단결권과 단결강제조항·······························22
03 소극적 단결권과 단결강제권의 인정 여부··24
Ⅳ 근로3권의 제한···············································24
01 서 설···························································24
02 근로3권 제한의 근거와 한계······················24
03 근로3권의 제한규정····································25
04 근로3권 제한의 한계···································26
제2절 노동법상 권리.의무의 주체·······················26
Ⅰ 근기법상 근로자·············································26
01 서 설···························································26
02 근기법상 근로자의 의의······························26
03 판례에 나타난 근로자성의 판단··················28
04 이사.감사 등의 근로자성 판단···················32
05 유형별 근로자성 판단사례··························34
Ⅱ 노조법상 근로자·············································38
01 노조법상 근로자의 의의······························38
02 노조법상 근로자 판단에 관한 학설············40
03 판례에 나타난 근로자성의 판단··················41
04 유형별 근로자성 판단사례··························45
Ⅲ 근기법상 사용자·············································47
01 의 의···························································47
02 사업주·························································48
03 사업경영담당자············································48
04 기타 근로자에 관한 사항에 대하여 사업주를
위하여 행위하는 자 ·····································49
05 근기법상 사용자 관련 사례························50
06 사용자책임의 확대······································51
Ⅳ 노조법상 사용자·············································52
01 의 의···························································53
02 사용자의 유형·············································53
03 사용자단체··················································54
04 사용자 개념의 확장·····································54

제2편_개별적 근로관계법
제1장 근기법의 적용관계와 기본원칙·············59
Ⅰ 근기법의 적용범위··········································59
01 서 설···························································59
02 인적 적용범위·············································60
03 사업장 규모에 따른 적용범위·····················60
04 근기법 적용의 예외·····································64
05 장소에 따른 적용범위·································65
Ⅱ 근로조건결정의 원리······································66
01 최저기준의 설정 및 강제····························66
02 근로조건 대등결정원칙·······························66
03 근로조건의 준수··········································67
04 위반의 효과·················································67
Ⅲ 강제근로의 금지·············································67
01 서 설···························································67
02 강제근로의 수단··········································67
03 의사에 반하는 근로의 강제························67
04 강제근로금지와 관련 문제··························68
05 위반의 효과·················································68
Ⅳ 폭행금지·························································69
01 서 설···························································69
02 폭행의 이유·················································69
03 폭행의 내용·················································69
04 다른 법 규정과의 관계·······························70
05 위반의 효과·················································70
Ⅴ 중간착취의 배제·············································70
01 서 설···························································70
02 중간착취의 성립요건···································71
03 법률에 의한 적용 제외·······························73
04 위반의 효과·················································73
Ⅵ 공민권 행사의 보장········································74
01 서 설···························································74
02 공민권 행사의 요건·····································74
03 공민권 행사의 효과·····································75
04 공민권 행사와 근로관계······························76
05 위반의 효과·················································77
Ⅶ 균등대우의 원칙·············································77
01 서 설···························································78
02 근기법상의 차별금지···································79
03 남녀고용평등과 일.가정양립지원에 관한 법률
상의 차별금지 ·············································84
04 근기법.남녀고용평등법상 차별금지의무 위반
의 효과 ························································86
05 차별에 해당되지 않는 경우························86
06 비정규직 근로자에 대한 불합리한 차별금지87
07 검 토···························································90
Ⅷ 직장 내 성희롱.괴롭힘 금지의 원칙··············90
01 서 설···························································91
02 직장 내 성희롱 및 괴롭힘의 내용··············91
03 직장 내 성희롱 및 괴롭힘의 법적 규제·····92
04 직장 내 성희롱 및 괴롭힘의 사법상 효과··92
Ⅸ 근기법의 실효성 확보방안······························93
01 서 설···························································93
02 근기법의 사법상의 효력······························93
03 벌칙의 적용·················································94
04 근로감독관제도············································95
05 기타의 근기법 실효성 확보방안··················97

제2장 근로계약의 성립과 근로관계의 내용·····98
Ⅰ 근로계약의 의의·············································98
01 서 설···························································98
02 근로계약의 법적 성질·································98
03 근로계약과 고용계약···································99
04 근로계약과 근로관계·································100
05 근로계약의 효력········································100
Ⅱ 근로자의 권리와 의무···································102
01 근로자의 권리···········································102
02 근로자의 의무···········································104
Ⅲ 사용자의 권리와 의무···································112
01 사용자의 권리···········································113
02 사용자의 의무···········································113
Ⅳ 채용내정·······················································114
01 서 설·························································114
02 채용내정의 법적 성질·······························115
03 채용내정과 근로관계·································116
04 채용내정의 취소········································116
05 채용내정 취소의 효과·······························117
Ⅴ 시 용····························································119
01 서 설·························································119
02 시용의 법적 성질······································119
03 시용계약의 성립요건·································120
04 시용과 근로관계········································121
05 본채용의 거절···········································121
06 시용기간의 경과········································123
Ⅵ 근로조건의 명시···········································123
01 서 설·························································124
02 명시할 근로조건의 내용과 시기.방법·······124
03 명시의무 위반의 효과와 근로자의 보호···126
Ⅶ 근로계약체결시 금지되는 계약·····················127
01 서 설·························································127
02 위약예정의 금지········································128
03 전차금 상계의 금지···································131
04 강제저축의 금지········································133

제3장 취업규칙··············································135
Ⅰ 서 설····························································135
01 취업규칙의 의의와 필요성························135
02 취업규칙에 대한 법적 제재······················135
03 법적 성질··················································136
Ⅱ 취업규칙의 작성.신고 및 주지의무··············137
01 서 설·························································138
02 작 성·························································138
03 신 고·························································139
04 주지의무····················································139
Ⅲ 취업규칙의 심사와 효력 및 내용의 제한·····140
01 취업규칙 심사···········································140
02 취업규칙 효력···········································140
03 내용의 제한···············································141
Ⅳ 불이익하지 아니한 취업규칙의 변경············141
01 의 의·························································142
02 근로자집단의 의견청취·····························142
03 의견청취효과 ···········································142
Ⅴ 취업규칙의 불이익변경·································143
01 서 설·························································143
02 불이익변경의 의의와 판단기준·················144
03 불이익변경 시 동의의 주체와 동의방법···146
04 불이익변경의 효력····································151
05 보론 : 징계사유 발생 시와 징계절차 요구 시
사이에 취업규칙이 개정된 경우 징계절차에서
적용할 취업규칙 ········································154

제4장 임 금···················································156
Ⅰ 임금의 의의··················································156
01 임금의 의의와 중요성·······························156
02 임금의 개념요소········································157
03 임금성의 구체적 판단·······························161
Ⅱ 평균임금·······················································162
01 의 의·························································163
02 산정사유····················································163
03 산정방법····················································164
04 평균임금산정이 곤란한 경우의 산정방법(판례
법리) ·························································169
05 평균임금 계산의 특례·······························170
06 평균임금의 조정········································171
Ⅲ 통상임금·······················································171
01 의 의·························································171
02 산정사유····················································172
03 통상임금의 범위········································172
04 통상임금의 계산(산정방법)·······················177
05 관련 문제··················································178
Ⅳ 임금의 지급방법···········································179
01 서 설·························································179
02 통화지급의 원칙········································180
03 직접지급의 원칙········································180
04 전액지급의 원칙········································182
05 매월 1회 이상 정기지급의 원칙···············185
06 위반의 효과···············································185
Ⅴ 임금의 비상시 지급······································186
01 의의 및 취지·············································186
02 요 건·························································186
03 내 용·························································186
Ⅵ 도급사업 및 건설업에 있어서 임금지급의 특례
···········································································187
01 서 설·························································187
02 도급사업에 대한 임금지급························187
03 건설업에서 임금지급 연대책임·················188
04 건설도급에 있어서 임금해당액 지급책임··189
Ⅶ 임금수준의 보호···········································190
01 임금의 중요성···········································190
02 임금수준의 보호 필요성····························190
03 입법 체계··················································190
04 최저임금제도·············································190
05 도급근로자의 임금보호·····························191
Ⅷ 휴업수당·······················································192
01 서 설·························································192
02 휴업수당의 지급요건·································193
03 휴업수당의 지급········································194
04 휴업수당의 감액(예외)······························194
05 관련 문제··················································197
Ⅸ 임금채권 우선변제········································198
01 의의 및 취지·············································199
02 근기법상 우선변제와 최우선변제··············199
03 사용자의 총재산········································201
04 우선변제의 방법········································202
05 임금채권 우선변제위반의 효과·················203
06 한 계·························································203
Ⅹ 임금채권보장법·············································203
01 의 의·························································203
02 적용범위····················································203
03 체당금 지급요건········································203
04 체불임금의 지급········································204
05 체당금지급의 효과 ···································204
06 사업주의 부담금········································204
07 수급권의 보호···········································205

제5장 근로시간.휴게.휴일 및 휴가···············206
Ⅰ 근로시간의 의의···········································206
01 서 설·························································206
02 근로시간의 개념과 계산····························207
03 법정근로시간·············································209
Ⅱ 근로시간 규제의 유연화·······························211
01 서 설 ·······················································211
02 탄력적 근로시간제····································212
03 선택적 근로시간제····································215
Ⅲ 연장근로의 제한···········································217
01 서 설·························································217
02 합의(통상)연장근로····································217
03 특별 연장근로···········································218
04 특례(업종별) 연장근로······························219
Ⅳ 휴 게····························································220
01 서 설·························································220
02 휴게시간의 길이········································221
03 부여방법····················································221
04 자유로운 이용···········································221
05 휴게시간의 특례(근로시간 및 휴게시간의 특례
참고) ·························································221
Ⅴ 휴 일····························································221
01 서 설····························································222
02 유급주휴일················································222
03 주휴일의 근로···········································223
Ⅵ 가산임금·······················································224
01 서 설·························································224
02 가산입금의 지급사유·································224
03 가산임금의 지급 및 보상휴가···················226
Ⅶ 근로시간 및 휴게시간의 특례······················229
01 서 설·························································229
02 요 건·························································229
03 연장의 한도···············································229
04 위반의 효과···············································230
Ⅷ 근로시간 계산의 특례(간주근로시간제도)·····230
01 서 설·························································230
02 기본원칙····················································230
03 외근 간주시간제········································230
04 재량근로 간주시간제·································231
Ⅸ 적용제외·······················································232
01 서 설·························································232
02 대상 근로자···············································232
03 적용제외 규정···········································233
04 적용 규정··················································233
Ⅹ 연차 유급휴가···············································234
01 서 설·························································234
02 연차 유급휴가권의 발생요건·····················236
03 연차 유급휴가 종류···································239
04 연차 유급휴가의 행사·······························240
05 연차 유급휴가청구권의 소멸과 임금청구권(근
기법 제60조 제7항)··································241
06 연차 유급휴가의 사용촉진························242
07 연차 유급휴가 대체···································244

제6장 여성과 소년의 특별보호······················246
Ⅰ 여성과 소년의 보호의 의의··························246
01 서 설·························································246
02 여성과 소년에 대한 공통된 보호··············246
Ⅱ 여성에 대한 보호·········································248
01 서 설·························································248
02 여성근로자에 대한 보호····························248
Ⅲ 소년에 대한 보호·········································250
01 서 설·························································250
02 연소근로자의 보호····································251
03 미성년자의 보호········································252

제7장 일과 가정의 양립지원·························255
Ⅰ 서 설····························································255
01 배 경·························································255
02 남녀고용평등과 일.가정 양립 지원에 관한 법
률의 제정 ··················································255
Ⅱ 일.가정 양립을 위한 지원과 조치···············255
01 육아휴직····················································255
02 육아기 근로시간 단축·······························256
03 육아휴직과 육아기 근로시간 단축의 사용형태
··································································257
04 그 밖의 조치 및 지원·······························258
05 근로자의 가족 돌봄 등을 위한 지원········258

제8장 인사와 징계·········································260
Ⅰ 인사권···························································260
01 인 사·························································260
02 인사권·······················································260
Ⅱ 배치전환(전직)··············································261
01 서 설·························································261
02 배치전환명령의 법적 근거························262
03 배치전환의 유형········································263
04 배치전환의 제한········································263
05 위법한 배치전환명령의 효과와 구제·········268
Ⅲ 전 출····························································269
01 서 설·························································269
02 전출명령의 유효요건·································269
03 전출 후의 근로관계···································270
04 원기업에의 복귀········································271
05 전출명령거부와 해고·································271
Ⅳ 전 적····························································271
01 서 설·························································272
02 전적명령의 유효요건·································272
03 위반의 효과···············································274
04 전적 후의 근로관계···································274
Ⅴ 휴 직····························································275
01 서 설·························································275
02 휴직의 법적 근거······································275
03 휴직의 제한···············································276
04 휴직과 근로관계········································278
05 위반의 효과···············································279
Ⅵ 직위해제와 대기발령····································279
01 서 설·························································279
02 직위해제의 법적 성질 : 휴직 및 징계와의 차
이 ······························································280
03 직위해제의 정당성 판단기준·····················280
04 직위해제에 이은 당연퇴직························282
05 직위해제처분의 구제·································283
Ⅶ 징 계····························································284
01 서 설·························································284
02 징계권의 법적 근거···································284
03 징계의 종류···············································285
04 징계의 정당성 판단···································286
05 부당징계의 구제········································298

제9장 사업변동과 근로관계의 이전···············299
Ⅰ 의 의····························································299
01 사업변동의 의미········································299
02 사업변동과 근로관계의 이전에 관한 현행법의
규율 ···························································299
03 노동법적 보호필요성 제기························299
Ⅱ 사업변동 시 근로관계의 존속보호················300
01 사업변동과 근로관계 이전에 관한 학설과 판
례의 태도 ··················································300
02 사업양도(영업양도)시 근로관계의 존속보호··································································304
03 근로관계의 승계시기와 승계범위··············306
04 근로관계의 승계와 경영상 이유에 의한 해고
··································································307
Ⅲ 사업변동 시 근로관계의 내용보호················308
01 의 의·························································308
02 양수인과 양도인의 법적 지위···················308
03 사업변동시 단체협약 및 취업규칙의 존속과
효력 ···························································309
Ⅳ 사업변동 시 노동조합의 지위······················311
01 합병 및 사업양도의 경우··························311
02 분 할·························································312

제10장 근로관계의 종료································313
Ⅰ 근로관계의 종료사유····································313
01 서 설·························································313
02 당사자의 의사표시에 의한 종료사유 - 사직
및 합의해지 ···············································313
03 자동(당연)종료사유····································316
Ⅱ 해고 및 해고의 제한····································318
01 해 고·························································319
02 해고의 제한···············································319
Ⅲ 근로자 측의 사유에 의한 정당한 해고·········321
01 서 설·························································321
02 근로자 측 사정에 따른 정당한 해고사유··321
Ⅳ 경영상 이유에 의한 해고(정리해고)·············324
01 서 설·························································324
02 경영상 해고의 정당성 요건······················325
03 대량 해고시 신고의무·······························333
04 경영상 해고 후의 조치·····························334
Ⅴ 단체협약.취업규칙상의 해고의 사유 및 절차적
제한 ····································································335
01 서 설·························································335
02 단체협약.취업규칙상의 해고사유··············335
03 절차적 제한···············································337
Ⅵ 해고시기의 제한···········································340
01 서 설·························································340
02 .요양을 위하여 휴업한 기간.에 해당하지 않
는 경우 ·····················································340
03 해고시기 제한의 예외·······························341
04 해고금지기간 중의 해고예고·····················342
05 위반의 효과···············································342
Ⅶ 해고예고제도·················································342
01 서 설·························································342
02 해고예고 적용 제외···································343
03 위반의 효과···············································344
Ⅷ 해고사유 등의 서면통지·······························345
01 서 설·························································345
02 서면통지의 내용········································345
03 서면통지의 방법과 시기····························346
04 위반의 효과···············································347
Ⅸ 부당해고 등의 구제······································347
01 서 설·························································347
02 노동위원회를 통한 행정적 구제················348
03 법원을 통한 사법적 구제··························356
Ⅹ 금품청산·······················································360
01 서 설·························································360
02 금품청산의 대상········································360
03 금품청산의 요건········································360
04 금품청산의 시기········································360
05 위반의 효과 ·············································361
. 퇴직급여·······················································362
01 서 설·························································362
02 퇴직급여제도의 설정.변경························363
03 퇴직금제도················································363
04 퇴직연금제도·············································368

제3편_집단적 노사관계법
제1장 집단적 노사관계법 총론······················373
Ⅰ 집단적 노사관계법의 개념····························373
01 서 설·························································373
02 집단적 노사관계법의 규율대상·················373
03 협력적 노사관계와의 구별························373
Ⅱ 집단적 노사관계법의 구조····························373
01 주 체·························································374
02 주요 내용··················································374

제2장 노동조합··············································375
Ⅰ 노동조합의 의의와 조직형태························375
01 노동조합의 개념········································375
02 조직형태····················································375
03 복수노조의 문제········································376
Ⅱ 노동조합의 설립과 심사·······························377
01 노동조합의 설립········································377
02 행정관청 설립심사의 범위(노조법 제12조) 388
Ⅲ 노동조합의 운영과 활동·······························390
01 노동조합의 운영········································390
02 노동조합의 활동········································401
Ⅳ 노동조합의 규약···········································410
01 의 의·························································410
02 법적 성질 및 논의의 전개방향·················410
03 규약의 기재사항········································411
04 규약의 제정과 변경 및 비치·····················412
05 조합규약에 대한 행정관청의 감독············413
Ⅴ 노동조합의 통제권········································414
01 의 의·························································414
02 통제권의 근거···········································414
03 통제권의 대상과 한계·······························415
04 통제처분의 내용과 절차····························416
05 위법한 통제처분에 대한 구제방법············417
Ⅵ 노동조합의 해산과 조직변경························418
01 노동조합의 해산········································418
02 조직변경····················································418
03 관련 문제:산업별 단위노조의 기업별 지부에
서 기업별 단위노조로 전환 가부 ··············424
Ⅶ 보 론····························································426
01 조합원 지위의 취득과 상실······················426
02 조합원의 권리와 의무·······························429
03 노동조합의 기관········································431
04 노동조합의 재정········································435
05 노동조합에 대한 행정관청의 개입············439

제3장 단체교섭··············································442
Ⅰ 단체교섭의 의의와 방식·······························442
01 단체교섭의 의의········································442
02 단체교섭의 유형········································442
03 단체교섭의 방식········································443
04 단체교섭의 법적 보호·······························447
Ⅱ 단체교섭의 당사자와 담당자························447
01 단체교섭의 당사자····································447
02 단체교섭의 담당자····································453
Ⅲ 노동조합 대표자의 협약체결권과 인준투표제455
01 서 설·························································455
02 노동조합 대표자의 단체협약체결권 제한 가부
(인준투표제의 문제)··································455
03 인준투표제를 이유로 한 교섭거부············458
04 인준투표제를 위반하여 체결된 단체협약의 효
력 ······························································458
Ⅳ 유일교섭단체조항··········································459
Ⅴ 제3자 위임금지조항의 문제··························459
01 문제의 소재···············································459
02 학 설·························································460
Ⅵ 단체교섭의 대상···········································460
01 서 설·························································460
02 단체교섭대상의 판단기준··························461
03 교섭대상의 3분체계론·······························462
04 교섭대상 대상성에 관한 구체적 검토·······464
05 단체교섭의 대상과 쟁의행위 대상(목적)과의
관계 ···························································471
06 단체교섭의 대상과 노동쟁의 조정대상과의 관
계 ······························································471
07 단체교섭의 대상과 부당노동행위와의 관계472
08 노사협의의 대상과의 관계························472
Ⅶ 교섭창구 단일화 절차···································472
01 서 설·························································472
02 교섭창구 단일화 절차 개관······················472
03 교섭단위 결정···········································474
04 공정대표의무·············································475
05 보 론·························································478

제4장 단체협약··············································481
Ⅰ 단체협약의 의의 및 성립·····························481
01 단체협약의 의의 및 기능··························481
02 단체협약의 법적 성질 ·····························482
03 단체협약의 성립요건·································483
04 행정관청 신고 등······································487
Ⅱ 단체협약의 내용과 효력·······························487
01 서 설·························································487
02 규범적 부분과 그 효력·····························487
03 규범적 효력의 한계(협약자치의 한계)······489
04 단체협약의 구속력 범위····························492
05 규범적 부분의 효력확장 및 연장(별도 정리)
··································································492
06 규범적 부분의 위반시 효력······················492
07 채무적 부분과 그 효력·····························493
08 제도적 부분(조직적 부분)·························498
09 단체협약의 문제 조항·······························498
Ⅲ 단체협약의 해석···········································499
01 서 설·························································499
02 당사자 의사에 따른 해석(처분문서의 일반적
해석원칙) ···················································500
03 불리한 해석 금지······································501
04 단체협약의 분쟁처리·································501
05 수락된 조정안과 중재재정의 분쟁처리·····502
06 분쟁처리(해석)의 효력 및 불복················503
07 결 론·························································503
Ⅳ 단체협약의 효력확장····································503
01 서 설·························································503
02 사업 단위 일반적 구속력··························504
03 지역적 구속력···········································509
Ⅴ 단체협약의 종료···········································512
01 서 설·························································512
02 단체협약의 종료사유·································512
03 실효 후의 근로조건···································516
04 협약당사자의 권리.의무····························518

제5장 쟁의행위··············································519
Ⅰ 쟁의행위의 의의와 종류·······························519
01 쟁의행위의 의의········································519
02 쟁의행위의 종류········································521
03 준법투쟁····················································523
Ⅱ 쟁의행위의 보호···········································527
01 쟁의행위의 보호········································527
Ⅲ 쟁의행위의 정당성········································531
01 서 설·························································532
02 쟁의행위의 정당성····································532
03 그 밖의 쟁의행위 제한법규······················550
Ⅲ 위법한 쟁의행위와 책임귀속························555
01 서 설·························································555
02 정당한 쟁의행위에 대한 보호···················556
03 민사책임의 귀속········································557
04 형사책임의 귀속········································561
05 징계처분····················································566
06 쟁의행위와 제3자의 손해··························567
Ⅳ 사용자의 쟁의대항행위·································568
01 서 설·························································568
02 쟁의행위 중의 조업 계속(대체근로)··········569
03 직장폐쇄····················································571
Ⅴ 쟁의행위와 근로계약관계······························581
01 서 설·························································581
02 쟁의행위와 근로계약관계··························581
03 쟁의행위와 임금청구권·····························582
04 파업에 참가하지 않은 근로자의 임금청구권(쟁
의위험부담) ···············································585
05 파업과 그 밖의 근로관계··························587
06 쟁의행위 종료 후의 근로관계 ·················588

제6장 노동쟁의의 조정··································589
Ⅰ 노동쟁의 조정제도········································589
01 서 설·························································589
02 조정의 대상···············································589
03 조정의 유형···············································590
04 조정전치주의·············································591
05 조정전치주의를 위반한 쟁의행위··············591
06 조정전치주의의 한계와 개선방향··············592
Ⅱ 공적 조정제도···············································593
01 의의 및 필요성·········································593
02 조정절차····················································594
03 조정기간····················································594
04 조정의 담당자···········································595
05 조정의 방법···············································596
06 조정의 종료···············································597
(1) 조정안이 거부된 경우···························597
(2) 조정안이 수락된 경우···························597
07 조정 전 지원 및 사후조정························597
Ⅲ 중재절차·······················································598
01 의 의·························································598
02 중재의 개시···············································598
03 중재의 대상···············································599
04 중재의 담당자··················