A Re-examination of the Legal Doctrine of Tentative Hiring Decision

This article critically examines the feasibility and implications of directly integrating the Japanese legal doctrine of tentative hiring decision (saiyonaitei) into the Korean legal framework as established through judicial precedents. In Japan, saiyonaitei is generally regarded as an employment contract with a reserved right of termination. This doctrinal approach has been shaped by two key factors: (1) an entrenched practice of regular recruitment of new graduates and (2) a dismissal law regime that primarily regulates termination through the doctrine of abuse of dismissal rights (kaikoken ranyo hori). However, Korea’s employment environment has evolved, with increasing reliance on rolling recruitment, internships, and trainee programs. These developments create a substantial factual divergence from Japan, while the fundamental principles governing dismissal law in both countries also differ significantly. Against this backdrop, the article reassesses the doctrine of naitei from three critical angles. First, it scrutinizes Japanese case law and academic discourse on the formation and legal nature of naitei, with a particular emphasis on Supreme Court precedents. It also critiques the Korean Supreme Court’s uncritical adoption of Japanese jurisprudence despite key structural differences between the two countries’ dismissal regimes. Second, it argues that the Japanese understanding of saiyonaitei, when applied to Korea’s contemporary employment practices, may not improve job seekers’ protections but instead potentially weaken them. Third, it explores the legal challenges that arise when an employment relationship is terminated after the contract has been concluded but before the employee begins work, contending that such issues must be resolved through legal principles that align with Korea’s distinct labor law framework.