인도 부당노동행위제도

김교숙 釜山外國語大學校 比較法硏究所 2004 比較法學 Vol.15 No.-

30 years have passed since Korea normalized with India. Today India is related closely with Korea to the extent of exceeding China at economic side. Therefore this paper studies India’ s labour law, especially the Unfair Labour Practices. The characteristics of unfair labour practices in India are as followings; ① non-provision of guarantee of worker’s basic rights in Constitution Law, ② the continuity of unfair labour practices, ③ the registration of trade union, ④ unfair labour practices on the part of workmen and trade unions of workmen, ⑤ judicial remedy process etc. The Indian Trade Unions Act,1926 was accordingly amended by the The Indian Trade Unions(Amendment) Act,1947(Act No.XLV of 1947). Certain acts are specified in the Act as unfair labour practice. Provision has been made enabling withdrawal of recognition of a registered trade union, when an unfair labour practice is committed by the executive or members of a registered trade union, or where a trade union has ceased to be a representative trade union or failed to submit any return prescribed under the Act. An unfair labour practice on the part of the employer has been made an offence punishable with fine. The Indian Trade Unions(Amendment} Act, 1947 and the Industrial Disputes Act, 1947 prescribe unfair labour practice on the part of the employer and trade unions of employers as well as on the part of workmen and trades unions of workmen. At the state level, the recognition of trade union is contained in Bombay Industrial Relations Act, 1946 and Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 provides for the recognition of trade unions for facilitating collective bargaining for certain undertakings and defines and provides for prevention of certain unfair labour practices. Conclusively speaking, this paper suggests that our labor law should more concretely prescribe unfair labour practice on the part of the employer by studying unfair labour þractice on the part of the employer in India.

산재보험법의 개정방향

김교숙 한국사회법학회 2004 社會法硏究 Vol.0 No.3

근로자단체의 교섭권과 자주성

김교숙 동아대학교 법학연구소 2015 東亞法學 Vol.- No.68

1) 노동운동의 중점은 근로자들이 단결하여 사용자에 대하여 노동조합을 승인받고 근로조건의 향상을 위하여 사용자와의 대등한 지위에서 자주적인 단체교섭을 제도적으로 인정하는데 있다. 노동운동의 역사적인 성과는 단체교섭제도와 단체협약제도의 확립에 있다. 헌법 제33조는 “근로자는 근로조건의 향상을 위하여 자주적인 단결권, 단체교섭권 및 단체행동권을 가진다”고 규정하여 근로자의 자주적인 단체교섭권을 기본권의 하나로서 보장하고 있다. 헌법상 보장된 근로자의 자주적인 단체교섭권은 원래 국가의 법률이나 정책에 의하여 만들어진 것이 아니라 오히려 역으로 국가의 탄압이나 사용자의 교섭거부와 투쟁하면서 근로자들이 스스로 생존을 위하여 자주적으로 교섭활동을 통해 획득한 근로자들의 권리이다. 따라서 근로자의 자주적인 단체교섭권은 국가와 사용자로부터의 자유권적 성격뿐만이 아니라 교섭상대방인 사용자에 대하여 성의를 가지고 교섭에 응할 것을 요구할 수 있는 생존권적 성격을 가지고 있다. 우선 국가로부터의 자유는 국가기관으로부터의 자유를 의미하며 특히 입법이나 행정권 및 사법부나 헌법재판소의 판결 내지 결정을 통하여 근로자의 단체교섭권을 제한하거나 침해하여서는 아니 됨을 의미한다. ILO도 그 헌장 부속서에서 단체교섭의 효율적인 승인을 규정하고 있고, ILO 제98호 및 제154호 협약에서도 노사 간의 자발적인 교섭을 위한 제도를 완벽히 개발하고 이용하도록 장려하고 촉진하기 위하여 필요한 경우에는 국내조건에 적절한 조치를 취하도록 규정하고 있다. 근로자의 자주적인 단체교섭권은 입법만능주의에 의한 법률과 이에 근거한 행정편의주의적인 조치에 의하여 제한 내지 침해될 수 없는 근로자의 기본적인 인권이다. 따라서 단체교섭권은 입법부의 입법작용에도 직접적인 효력을 가지고 있기 때문에 헌법상 보장된 근로자의 자주적인 단체교섭권을 제한하거나 침해하는 노조법의 규정은 위헌이기 때문에 그 효력을 상실한다. 2) 근로자의 자주적인 단체교섭권은 노동기본권 가운데서 가장 핵심적이고 목적적인 권리로서 그 만큼 충분히 보장되어야 한다. 헌법 제33조에서 근로자의 자주적인 단체교섭권과 관련하여 그 내용으로서 ① 단체교섭권의 주체, ② 교섭대표선출권, ③ 교섭방식선택권, ④ 교섭단위결정권, ⑤ 단체교섭요구권, ⑥ 단체협약체결권에 관하여 살펴보면서 헌법상 보장된 단체교섭권을 구체화한 노조법상의 문제점과 그 개정방향을 제시해 보았다. 특히 교섭창구단일화제도는 단체교섭의 주체, 교섭대표선출권, 교섭방식선택권 및 교섭단위결정권이란 관점에서 근로자의 자주적인 단체교섭권을 제한 내지 침해하는 위헌 규정으로 폐지되어야 한다. 더나가서 헌법의 수호기관인 헌법재판소는 헌법상의 기본권이 충분히 보장되도록 결정을 내려야 한다. 헌법 제37조 제2항에 의한 기본권의 제한은 극히 예외적이고 한시적인 경우에 적용되어야 한다. 헌법재판소가 기본권제한이라는 예외적인 상황을 일반화하여 합헌 결정을 내린다면 헌법상의 기본권 보장은 형해화할 것이다. 이러한 측면에서 교섭창구단일화에 관한 헌법재판소의 만장일치에 의한 합헌 결정은 근로자의 자주적인 단체교섭권의 법리를 오해한 부당한 결정이라고 생각한다. Collective bargaining is a fundamental right. It is a key means through which employer and their organization and trade union can establish fair wages and working conditions. It also provides the basis for sound labor relations. The object of these negotiation is to arrive at a collective agreement that regulates the terms and conditions of employment. Collective agreements may also address the rights and responsibilities of the parties thus ensuring harmonious and productive industries and workplaces. Enhancing the inclusiveness of collective bargaining and collective agreements is a key means for reducing inequality and extending labor protection. Workers' independent right to bargain collectively should not be impeded or restricted by the public authorities, especially by the legislation or the enactment. Workers' independent right to bargain collectively should include such rights as follows; ① the right to choose the party to bargaining, ② the right to elect the bargaining representatives in full freedom, ③ the right to choose the bargaining form, ④ the right to contract the collective agreement etc. ILO Convention No.98 (Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively) Article 4 regulates as follows; “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organization and workers' organization, with a view to the regulation of terms and conditions of employment by means of collective agreements.” This paper suggests the problems and their amendments of the Labor Union and Labor Relations Adjustment Act 2014(LULRAA) in violation of the Constitution Law Article 33 as well as the ILO Convention No. 87 and No. 98. as follows; ① the subject of the right to bargain collectively(LULRAA Article 29), ② the right to choose the party to bargaining(LULRAA Article 29 2 sub.1), ③ the right to elect the bargaining representatives in full freedom(LULRAA Article 29 2 sub.2 and 3), ④ the right to decide the bargaining unit(LULRAA Article 29 2 sub.1), ⑤ the right to demand the collective bargaining(LULRAA Article 30), ⑥ the right to contract the collective agreements(LULRAA Article 31 and Article 34). Conclusively speaking, I want this paper contributes the amendment of LULRAA to correspond with the Constitution Law as well as the ILO Convention No. 87, No. 98 and No. 154.

우리나라와 인도의 부당노동행위제도비교

김교숙 한국비교노동법학회 2008 노동법논총 Vol.13 No.-

33 years have passed since Korea normalized with India. Today India is related closely with Korea at economic side. I think that sooner or later the Korea-India FTA will be signed. Therefore this paper studies India’s labour law, especially the Indian Unfair Labour Practices. The characteristics of unfair labour practices in India are as followings; ① non-provision of guarantee of worker’s basic rights in Constitution Law, ② the continuity of unfair labour practices, ③ the registration of trade union, ④ unfair labour practices on the part of workmen and trade unions of workmen, ⑤ judicial remedy process etc. The Indian Trade Unions Act,1926 was accordingly amended by the The Indian Trade Unions(Amendment) Act,1947(Act No.XLV of 1947). Certain acts are specified in the Act as unfair labour practice. Provision has been made enabling withdrawal of recognition of a registered trade union, when an unfair labour practice is committed by the executive or members of a registered trade union, or where a trade union has ceased to be a representative trade union or failed to submit any return prescribed under the Act. An unfair labour practice on the part of the employer has been made an offence punishable with fine. The Industrial Disputes Amendment Act, 1982 prescribes unfair labour practice on the part of the employer and trade unions of employers as well as on the part of workmen and trades unions of workmen. Conclusively speaking, this paper suggests that our labor law should more concretely prescribe unfair labour practice on the part of the employer by studying unfair labour practice on the part of the employer in India.

老人福祉制度에 관한 比較法的 硏究 : 美國·英國·日本을 中心으로

김교숙,박원태 釜山外國語大學校 比較法硏究所 2010 比較法學 Vol.21 No.-

For a welfare system for the aged in the Republic of Korea, it is expected to bε a very serious social problem in a short time. It is keenly needed that the government fully understands this phenomenon, and that every ministry cooperates to deal with the problem. In particular, in order to minimize trial and error of the welfare measures for the aged in the coming aging society, actual conditions of the aged should be regularly checked up on whether thεre is any aged person who needs long term medical care, or who has desires to receive benefits from welfare system. Based on its result, it is necessary to review the current welfare policy for the elderly, to work out a Comprehensive Plan for the Welfare of the Aged Welfare(CPWA), to better the system to carry on, to expand and improve facilities, and to nurture professionals. The Welfare Policy for the Aged(WPA) and the Welfare Law for the Aged(WLA) have been developed in various ways according to each country’s social, economic and political conditions. The Korean government has enforced a medical insurance system since 1977, and it has declared it would realize practical policies for the aged by revising the WLA on June 5, 1981. The WLA is usually divided into at least five sectors: an income security system, a medical insurance system, an in-home welfare system, a facility protection system, and a preference system for the aged. In spite of these systems, however, only a few efforts have been madε to deal with problems of the elderly and to make out a plan for the welfare for the aged. What is worse, even the current welfare policies have tumεd out to have little effect. In other countries, most elder1y get benefits from income security of the public pension system. These are thanks to each government’ s effort to tackle the poverty problem of the aged through practical income security policy in order to satisfy desires for welfare against economic difficulties, and to find out ways to make the elderly independent. The U.S. government secures a variety of income for the aged according to their levels of income, allowing those above 65 years old to get benefits from an income security policy. The U.K. government secures income for all the citizens with a national insurance system. The Japanese government carries out a public pension system targeting all the elderly, allowing those with even a little bit of economic power to get the benefits from a public pension starting from the age of 65. The Korean government, however, does not satisfy the desire for welfare of the aged suffering from economic difficulties, and even worse, it has failed to deal with the economic difficulties of poor and low income families, weakening the situation. Therefore, with the aging society in the 21st century, it is a social and governmental task to make the elderly live a better life in the future, and to lessen its burden on family responsibility, enhancing the quality of life of people. Now is the time for the Korean government to carry out a public pension system for the aged above 65 years old as seen in the other countries’ cases, and to put its whole energy into developing welfare policies and services for the aged.

WTO체제와 노동기준

김교숙 釜山外國語大學校 比較法硏究所 1999 比較法學 Vol.10 No.-

헤어샵 고객 선택 행동이 재방문의도에 미치는 영향

김교숙,최영희 한국뷰티경영학회 2015 한국뷰티경영학회지 Vol.3 No.1

This study is intended to look into the effect of customer's choice behavior on revisit intention in hair shops. To achieve the purpose of this study, an empirical survey was carried out to 182 customers visiting hair shops. The result is summarized as follows. Research showed that the human, material and product factors of customers' choice behavior had a positive effect on their revisit intention in hair shops. In human factors, the beauty art, employees' careful attention, likeable language and appearance, and ability to offer the latest information to customers could improve revisit intention. In material factors, facilities such as cozy rest space by comfortable and stable indoor atmosphere and stylish interiors, location, and clean indoor atmosphere could improve revisit intention. In product factors, more good price, image and reputation could improve revisit intention.

근로자의 건강권

김교숙 한국비교노동법학회 2010 노동법논총 Vol.19 No.-

Everyone hopes to be born, live and die healthfully. But workers are always subjected to the unhealthful conditions by means of the machinery and the chemical industry in the capital production system. Hitherto the labor law has regulated the workers' working conditions or working environment. But I think that worker's right to health to guarantee worker's health and life is more important than workers' working condition or working environment. This paper first of all takes the problems of hitherto labor law which has regulated worker's unhealthful conditions and employer's obligation of taking caring worker into consideration. On a basis of those problems this paper proposes the workers' right to health which the workers guarantee by themselves at the factory system. First, the nation should take an affirmative action to protect workers' right to health on a basis of the Constitution Law sec. 36 ③ and International Covenant on Economic, Social and Cultural Rights sec. 12. Therewith the nation and public authority should not restrain or infringe this right by means of the regulations or public administration actions. Secondly, worker should claim their right to health against their employer as the working condition. The employer should guarantee workers' right to health as follows; ① worker's right to participation in an organization․project and administration related to guarantee worker's health, ② worker's right to prevent the danger of worker's health, ③ worker's right to medical check-up, ④ worker's right to compensation, ⑤ worker's right to health promotion.

중국 노동법제의 형성과 발전

김교숙 부산외국어대학교 비교법연구소 2001 比較法學 Vol.12 No.-

中國工傷補(賠) 償法賠制度

金敎淑,刘红波 釜山外國語大學校 比較法硏究所 2010 比較法學 Vol.21 No.-

Industrial Accident, the inevitable outcome of industrial society in modern times, are still unavoidable and frequent occurrence of social problems in modern society. It is not only related to the workers to protect themselves and the guarantee of their happy family life, but also related to social stability and national economic development. Therefore, how to set up a reasonable compensation system for industrial accident, the full and effective protection of workers’ safety and health, has become the focus of research on the subject of the law circles. This motivated me to dedicate myself to the study of the industrial injury compensation system in China. China, as the new nation members joining the rank of the establishment of the industrial accident compensation legal system, promulgated the industrial accident insurance regulations in 2003, which established the social insurance compensation system of industrial accident. However, there are still many problems in the industrial injury insurance system according to the president practice situation. In this paper, we consider the existing industrial injury compensation system as the main object of study, and make an analysis and the related advice of how to make improvement on the potential problems on industrial injury recognition and the range of compensation, etc. The first part, we make a brief overview of industrial injury compensation system in China. The second part describes the significance of industrial injury, and meanwhile analyses the Law’s character of industrial injury compensation system. The third part describes the industrial injury recognition standards and the subsistent problems of the causality of recognition following the existing law in China. Given that China'’s current industrial injury compensation system has no theoretical basis for injury identification, in this paper on the basis of the main function of the injury compensation system is to fill the damages and protect the injured workers and their familys’ life, the author tries to put forward the proper relevance theory with business in the industrial injury recognition in China. The fourth part describes the contents of industrial injury compensation in China. The fifth part points out the ways and the direction of improvement of industrial injury compensation system in China. The last part makes a conclusion of discussed above.