This article reviewed the legal principles of the right to expect continued employment, which have been formed by the case law so far in 2024, that is, the right to expect employment renewal, the right to expect conversion to regular employment, the right to expect re-employment after retirement, the right to expect employment succession, and the right to expect to be converted to regular employment.
First, this article examined the concept and types of the rights to expect continued employment. And then, it was reviewed by breaking down into three categories : the criteria for judging and judgment elements of expectant right, and ‘special circumstances’ that could deny the formation of expectant rights. Finally, after examining the general contents of ‘reasonable grounds’ for refusing continued employment, I have categorized the reasonable grounds and reviewed the criteria according to type.
When there are not reasonable grounds, there will happen differences in the legal effects for each expectant right. The expectant right with the same employer(group A) will not face severe difficulties, but the expectant right of group B which experience changes of the employer should be judged differently. Excluding the legal effects related to the right to expectation of the employment succession that applied when outsourcing companies are changes, the legal effects related to the expectant right which applied in the case of outsourcing or insourcing and the expectation rights to be converted to regular employment can be applied to the legal effects in transferring between companies as well.
When there is no protection against the termination of employment of fixed-term employees, the right to expect renewal, which started as a precedent legal principle in charge of its function, is expanding its scope, as seen above, and the criteria for judgment are also evolving. Since the right to expect continued employment was created as an exception to the termination of an employment relationship due to Law-Forming action (Rechtsfortbildung) by judges through the method of analogy, there is a limitation that it cannot be interpreted too broadly.
However, even though the principles and exceptions cannot be changed, the court is expected to expand and apply these in the future, just as it has performed a significant protection roles from the unfair termination of employment by employers while varying the scope of recognition of expectant rights according to the needs for protection of employees. This is because there are still many labor realities that can apply to legal principles of restriction of dismissal under Article 23 (1) of the Labor Standards Act.