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한국경영법률학회> 경영법률> 독일법상 “직장 내 괴롭힘(MOBBING): 적대행위(BULLYING)”에 관한 연구

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독일법상 “직장 내 괴롭힘(MOBBING): 적대행위(BULLYING)”에 관한 연구

Articles : A Study on the Mobbing: Bullying in the German Law

김희성 ( Hee Sung Kim )
  • : 한국경영법률학회
  • : 경영법률 22권2호
  • : 연속간행물
  • : 2012년 01월
  • : 349-392(44pages)

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Rudeness against, harassment of, and hostilities toward individual employees have undoubtedly existed at all times and are, therefore, not new phenomena in the workplace. However, over the last ten to fifteen years, sociologists, psychologists, physicians, and legal scholars have increasingly focused on such behaviors. In Germany, workplace bullying is known as “mobbing”, a term derived from the English verb “to mob” or “to attack”. Despite the increased public interest in workplace harassment, demonstrated by this survey, unlike French law, German law has no special rules dealing with mobbing. This article describes how German law deals with the problems arising from mobbing in the workplace. The article seeks to ascertain whether the general provisions of the German Civil Code (Burgerliches Gesetzbuch) are sufficient to tackle these problems or if additional statutory protections should be enacted. After defining the term “mobbing” in (Section Ⅰ), I will demonstrate which preconditions must be fulfilled in order to establish a claim for mobbing (Section II). While in Section III the legal consequences of mobbing (concerning the substantive *155 law) will be described in detail, in Section IV, I will establish procedural problems arising from the enforcement of mobbing claims. Section V will summarize the main results. In the following text, the terms “mobbing”, “workplace bullying”, and “harassment” will be used synonymously”, all refer to the behavior described in Section II. For reasons of clarity, only the masculine grammatical forms will be used. Questions regarding the criminal law aspects of mobbing will not be addressed in this paper. Against the employer the victim may have contractual as well tort claims whereas a supervisor or coworker can be exposed only to tortious claims. The victim has a contractual damage claim against the employer only if either (ⅰ) the employer was the harasser (bossing), or (ⅱ) the offender`s behavior can be attributed to the employer that is the case only with harassing acts of supervisors that affect the victim`s employment status, or (ⅲ) the employer violates his duty to (actively) protect the employee against the behavior of supervisors, coworkers, and third persons on which he exercises influence, section 241 para. (2) of the German Civil Code. Tortious claims against the employer may be asserted if either (ⅰ) the employer was the offender, (ⅱ) he violated his duty to (actively) protect the employee, or (ⅲ) the offender acted the employer`s vicarious agent. The victim entitled to material damages and, if he or she suffered sexual harassment or if the victim`s health was harmed, to damages for pain and suffering. If the employer is tortuously liable the victim is entitled to damages for pain and suffering as in the case where the victim`s right of personality was harmed. A tortious liability of a supervisor or coworker is possible only if the victim`s life, health, property, or right of personality was harmed. The same types of damages (material and damages for pain and suffering) are available; however, the victim has claims against a harassing supervisor or coworker if he lost his job as a result of the workplace bullying. As demonstrated in this paper, the general civil and employment law provides a bundle of different rights and possibilities for mobbing victims. Although the most important remedies are damages (material as well as for pain and suffering), the other options (e.g.,injunctive relief, the right of retention, and the possibility of filing a complaint to the employer or to the works council)may also help the victim. Against this background it seems unnecessary to pass a law changing the substantive law in force and creating a special statutory law dealing with workplace bullying, as it is hard to imagine what other remedies such a law could provide. It is hoped that, due to the interest society, physicians, and psychologists take in workplace bullying, employers, supervisors, and coworkers not only pay more attention to such events and care about the serious consequences that may arise of them, but are above all willing to fight actively against harassment of which they become aware. In the end the “battle against workplace bullying” will have to be fought (and won) mainly at the workplace itself and not in court rooms.

ECN

ECN-0102-2014-300-001582127


UCI

I410-ECN-0102-2014-300-001582127

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 계간
  • : 1229-3261
  • :
  • : 학술지
  • : 연속간행물
  • : 1986-2018
  • : 1193


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저자 : 김홍기 ( Hong Ki Kim )

발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 1-34 (34 pages)

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A MBO(management buyout) is a form of takeover where a company`s existing directors acquire a large part or all of the company. MBOs are similar in all major legal aspects to any other acquisition of a company. The particular nature of the MBO lies in the position of the buyers as directors of the company, and the practical consequences that follow from that. Legal Issues especially relating to MBOs arise when the asymmetric information possessed by directors may offer them unfair advantage relative to current shareholders. The impending possibility of MBOs may lead to principal-agent problems, moral hazard, and perhaps even the subtle downward manipulation of the stock price prior to sale via adverse information disclosure. Since corporate valuation is often subject to considerable uncertainty and ambiguity, and since it can be heavily influenced by asymmetric or inside information, some question the validity of MBOs and consider them to potentially represent a form of insider trading. This article focus on the legal issues which arise surrounding structural conflict of interest of MBOs between the shareholder who sell its stock and director who acquire those stock, and then discuss its solution, operation methods in South Korea. We then provide a theoretical criteria for the use of MBOs as the appropriate standard for M&A. This article is organized in six parts. Part Ⅱ address the concept and function of MBOs and its nature of structural conflict of interests (Ⅱ. The Concept of MBOs and Its Structure of Conflict of Interest). Part Ⅲ we briefly review major country`s MBO regulations and cases (Ⅲ. Major Country`s MBO Regulations and Cases), and in part Ⅳ we review duty of directors who acquire stock of the company, and a standard of judgement on occupational breach of trust (Ⅳ. Duty of Care of on Directors, and Standard of Judgement on Occupational Breach of Trust).

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저자 : 손진화 ( Jin Hwa Son )

발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 3-4 (2 pages)

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3개정상법상 소수주주축출제도에 관한 연구

저자 : 육태우 ( Tae Woo Yook )

발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 35-92 (58 pages)

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It is a significant event to the existing basic principle of the corporate law that Korean revised corporate law of 2012 will introduce the new compulsory acquisition or squeeze-out. This system is modeled on the cash-out merger of the United States and the compulsory acquisition of Germany. Such a move requires a policy shift that corresponds to a more modern vision of financial markets in which minority shareholders are protected not by an inalienable right to remain as shareholders, but rather by a right to receive fair value in exchange for their shares. Compulsory acquisition has both the positive aspect and the negative aspect. The former is that senses of loss of minority shareholders expelled against their will could frustrate the minority shareholders` will to participate in the economic activities through the corporate system. In order to protect the minority shareholders` expectations, first of all, the fair transaction of compulsory acquisition and the fair price given to minority shareholders should be secured. For this purpose, the entire fairness test of the United States and the European method of procuring the fairness in the compulsory acquisition can be referred to. Essentially in Korean legal system, however, fundamental reexamination about the relationship of the controlling shareholders and the minority shareholders is necessary. For that, the concept of fiduciary duty approved in many advanced countries should be introduced to the Korean corporate law in the near future.

42011년도 상사법학계 동향과 개정회사법의 중요쟁점

저자 : 최완진 ( Wan Jin Choi )

발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 93-120 (28 pages)

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This thesis examines trends in the development of the Korean Commercial Code (the “KCC”), specifically the Companies section thereof, which was amended in 2011. The amendment, which represents the most extensive amendment since the KCC was enacted in 1962, affects all 250 Articles therein, bringing about significant and enormous changes in corporate governance and financing in Korea. I hope that this amendment will help create a favorable environment for young entrepreneurs to set up business ventures, develop transparent capital markets out of government-directed economy, and successfully establish a fair and transparent corporate culture. The KCC provisions pertaining to corporate governance and other requirements should ideally have been amended much sooner. However, the amendment was completed in 2011 after six (6) years since the commencement of amendments to the KCC. The Companies section should be updated quickly to keep up with global economic developments including, but not limited to financial crises, and should be amended regularly to remain consistent with global standards. Fortunately, the Ministry of Justice announced that it plans to launch a special committee responsible for arranging meetings whenever necessary to promptly prepare amended bills for both the short and the long term, whereby legislation can be passed in a timely manner. I believe that continuous careful review and consideration are needed with respect to certain undecided matters, such as the introduction of special regulations for listed companies, for information technology businesses, for business management supervisory commission, for improvements in corporate M&A and spin-offs practices, and for a poison pill and warrant system. Furthermore, considering that a substantial number of issues to be included in the enforcement decrees portion of the Companies section, remains outstanding, elaborate and thorough efforts should be maintained in preparation of the enforcement decrees portion of the Companies section.

5영업비밀의 성립 및 침해요건에 관한 연구 -우리나라와 일본의 판례를 중심으로-

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발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 121-145 (25 pages)

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There are three factors required to be trade secret. namely, a trade secret is information that (1) is not generally known to the public (2) confers some sort of economic benefit on its holder (3) is the subject of reasonable efforts to maintain its secrecy. If an employee uses the secret information of his company by a dishonest means or he violates his obligation to keep trade secret, he trespasses trade secret of his company. This article focuses on court`s decision pattern on definition and infringement of trade secret. what is more, It deals with Japanese court`s decision comparing with Korean court`s decision.

6딜러계약의 법리

저자 : 최영홍 ( Young Hong Choi )

발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 147-180 (34 pages)

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Korean Commercial Code has no provision on a dealership agreement which is widely and variously used in the world of distribution business. There is few academic legal researches on them. It is necessary to establish the basic concept of and to find out the characteristics of the dealership agreement. A dealership agreement is an agreement under which one party (the supplier) agrees to supply the other party (the dealer) with products on a continuing basis and the dealer agrees to purchase them and to resell them in the dealer`s name and on the dealer`s behalf. Since the relationship of dealership agreement can closely resemble other forms of distribution, the differences are worthy of examination. The law of dealership agreement only applies where the party that distributes products to third parties does so in its own name. In other words, the distributor sells the products which it has bought from the supplier. In promoting the sale of the products, the distributor pursues its own interest. This implies that commission agents do not fall within the scope of dealership agreement. A dealership agreement is a framework agreement (contrat cadre), which provides the context for subsequent agreements (contrats d`application) of sale and purchase of the products. A framework agreement usually defines only the basic elements of the subsequent contracts, without establishing the specific modalities. Whereas the contrats d`application are usually of short duration and bind the parties to precise obligations, the framework agreement is meant to establish a relationship of ongoing collaboration between the parties. The number of ``application`` contracts will usually result from the orders by the dealer to the supplier. In the meantime the provisions of the Korean Commercial Code on the sale and purchase of the products between merchants are applied to the dealership agreement. Co-operation is essential to dealership agreements and indeed to most other long-term commercial contracts. Each party heavily depends on the other party`s co-operation for attaining its objectives. The obligation to co-operate, which stems from the principle of good faith, is distinctly more intense than in most other contracts. The fair trade law of dealership, including pricing and vertical restraints, should not be overlooked. I hope this thesis be a small beginning of the in-depth study on the distribution law and distribution agreements by the academic world.

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This article is exploring the implications and limits of shareholder primacy paradigm, which has influenced corporate laws and scholarship worldwidely. Historically the paradigm was created as a norm for regulating unfair minority oppression in closely held corporations, but in modern times it has played a role of the leading principles in business, law-making, and corporate law scholarship. But there are fundamental limits for the paradigm to allow managements to set up and implement the sustainable development strategies. Given the limits, the paradigm can not afford to reflect the contemporary mission fully. Comparing to the contractarianism, providing the theoretical grounds for the paradigm, stakeholder theory and communitarianism lack in the practical justification in the current shareholder-centered corporate law system, even though they have the moral legitimacy. So this article suggests the enlightened shareholder paradigm as the third way building a bridge between the contractarianism and stakeholder theory (communitarianism).

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발행기관 : 한국경영법률학회 간행물 : 경영법률 22권 2호 발행 연도 : 2012 페이지 : pp. 217-254 (38 pages)

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Corporate governance has been analysed almost exclusively in the context of conventional Company law. By contrast, little is written on governance structures in Islamic finance institutions(IFI), despite the rapid growth of IFI since the mid 1970s and their increasing presence on world financial markets. The governance structure of IFI are distinguished from conventional governance structures by the addition of a Shari`ah advisory body. Shar`iah board play an important role in the governance of IFI. Shar`ia scholars provide guidance to the institution on product development and work closely with the management to ensure that the institution is confirming to the principles of Shar`ia. Islamic banking represents a radical departure from conventional banking, and from the viewpoint of corporate governance, it embodies a number of interesting features since equity participation, risk and profit-and-loss sharing arrangements from the basis of Islamic financing. Because investment account holders and shareholders of the same institution are exposed to similar risks-though the principle of risk sharing but special care must be taken to protect the interests of investment account holders. A number of multilateral institutions issue standards and best practice guidelines. These standards and guidelines are not legally binding, but they may become mandatory if approved by national regulatory authorities. Compliance with such standards helps an institutions achieve a good reputation globally and win customer confidence. Significant fragmentation exists among the countries with Islamic financial institutions as to the scope of corporate governance and regulation of these institutions. The Islamic standardsetting organizations will promote good corporate governance. If the IFI to continue to grow and garner additional market share in the competitive global financial industry, widespread adoption of corporate governance best practice is imperative.

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The aim of this paper is to study the Korean Supreme Court cases regarding the family drivers on the motor vehicle insurance policy. The Court decided that de facto Spouse and stepmother of the insured are included the family drivers on the motor vehicle insurance policy. Moreover, even though de facto marriage is bigamy, in some cases, the Court rendered that bigamous de facto Spouse is also included the family drivers. On the other hand, the Court upheld that de facto Spouse of parents of the insured is not the family drivers. However, it appears that de facto Spouse of parents of the insured also should be included the family drivers, if they live together with the insured and the insured`s parent, and thus if they may drive the insured motor vehicle. In 2010, motor vehicle insurance policy revised that stepmother and stepfather of the insured were included the family drivers. Further, it would be desirable that de facto Spouse of parents of the insured also should be included the family drivers on the policy. In this regard, the author suggest the amendment of the motor vehicle insurance policy in order to expand the scope of the family drivers.

10자동차보험의 무면허운전,음주운전 면책약관에 관한 연구

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According to the decisions of the Supreme Court and the Constitutional Court in Korea, the effects of exclusion clauses for unlicensed driving and driving in a drunken condition on the motor vehicle insurance policy are different between the character of risks. Personal or property liability risk is not covered against unlicensed subscriber`s driving, but the personal accident risk is certainly indemnified against drunken or unlicensed subscriber`s driving. The position of the Supreme Court and the Constitutional Court in Korea is that, though unlicensed driving or drunken driving is a kind of an intentional criminal act, but the intentionality just concerns the act of unlicensed driving or drunken driving, not extending directly to personal injury and loss of life, unless there are other circumstances involved. In this paper, the author analyze the Korean Supreme Court cases, and suggest some amendment of the Korean Commercial Law Article 732-2 and the motor vehicle insurance policy in order to solve the legal problems on exclusion clauses for unlicensed driving and driving in a drunken condition.

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