노조법 제44조의 타당성 및 실효성 등에 대한 검토

이선신 노동법이론실무학회 2012 노동법포럼 Vol.- No.9

The article 44 in The Trade Union Act(The Trade Union and Labor Relations Adjustment Act) is generally accepted as the legal ground of the principle of no work no pay. However, the article 44 in The Trade Union Act seems not to have been legislated with full legal consideration and deep debate in 1997. So, this thesis examined the validity and effectiveness of the article 44 in The Trade Union Act. As a result of the examination, I've found that the article 44 in The Trade Union Act doesn't have sufficient validity and effectiveness. To be specific, I've demonstrated the weak points of the grounds(characteristic of bilateral contract, theory of legal risk bearing, theory of labor-management relations suspension, theory of the equality of laboral dispute etc.) of the principle of no work no pay. Besides, I've confirmed that the principle of no work no pay has no legitimacy in terms of the constitutional law, because it's not consistent with the purpose of the the right to strike and it's probabe to constrain employees' constitutional right(right to strike). Especially, examined from the standpoint of "the theory of the compensation for the labor-management relation"(a viewpoint, through which perceiving the essencial nature of wage as 'the compensation for the continuation of labor-management relation'), it's clear that the article 44 in The Trade Union Act has no validity and effectiveness. So, I've proposed that "the problem of paying the wage during the strike" should be understood by the theory of the right to protest(the right to refuse to pay the wage during the strike) instead of the principle of no work no pay, because of the logicality. So to speak, I think that it's more rational and logical to accept "the problem of paying the wage during the strike" as an issue of the legal connection in terms of performance of the bilateral contract rather than as an issue of the legal connection in terms of continuation of the bilateral contract. It's definitely possible, of course, for the employer to pay the (all or portion of) wage during the strike through relinquishing (all or portion of) his own right to protest(the right to refuse to pay the wage during the strike). And according to "the theory of the right to protest(the right to refuse to pay the wage during the strike)", there is no need to worry about the legal problem of unfair profits. In conclusion, I've proposed that the article 44 in The Trade Union Act should be eliminated through the amendment of the law, and suggested that "the problem of paying the wage during the strike" should be left to the labor-management autonomy.

사법분야 투고논문 : 쟁의행위 기간 중 근로계약의 법적 성격과 그 효과

강성태 ( Seong Tae Kang ) 한양대학교 법학연구소 2013 법학논총 Vol.30 No.1

Paragraph (1) of Article 33 in the Constitution provides all workers with the right to collective action in order to enhance working conditions. For securing the right to collective action pursuant to the Constitution, the Trade Union and Labor Relations Adjustment Act(hereafter ``the Act``) confirms the protections for "industrial action" which means actions or counter-actions that obstruct the normal operation of a business, such as strikes, sabotage, lock-outs, or other activities through which the parties to labor relations intend to achieve their claims; restriction on civil claims for damages because of industrial action(article 3),limitation of criminal claims against industrial action of trade unions(article 4) and prohibition of dismissal of or discrimination against a worker on the grounds of participation in lawful collective activities(subsection 5 of article 81).The Supreme Court, however, has decided that all kinds of protections under the Act could be given only in the case that the industrial action might satisfy with four requirements of ``lawful industrial action``: 1) the industrial action should be begun and led by a body which must be qualified to a representative in collective bargaining such as a trade union; 2) the purposes of the industrial action should be to facilitate self-governing negotiation or bargaining between labor and management for the enhancement of working terms and conditions; 3) the industrial action should be begun only after the employer rejected collective bargaining by the specific requests of workers and it should obey the procedures required by applicable laws and regulations including vote of majority of union members for strike; 4) means or ways of industrial action should be harmonized with the employer`s property right and shall not take any exercise of violence. Because of these restricted legitimacy of case law, a strike might be illegal very easily. This paper argues that the case laws concerning industrial action have gone beyond the protection of the right to collective action under the Constitution so that they have to be changed. Dealing with the problems concerning as the effect of industrial action to employment relationship, the Court has taken a theory of ``suspension of employment relationship``. According to the theory, the parties of employment contract, an employee and an employer, should not fulfill each one`s primary duty; duty to work of an employee and duty to pay a wage of an employer. The Court have also required the four conditions of ``lawful industrial action`` in application of ``suspension of employment relationship`` effect. This paper argues that an interpretation of employment relationship during industrial action should be changed into the way harmonized with the purpose of protection of the right to collective action.

임금의 본질에 대한 고찰

이선신 ( Seon Sin Lee ) 안암법학회 2011 안암 법학 Vol.0 No.36

There`re several theories on the essencial nature of wage, and those are theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics. Those theories, which came from Japanese labor-law scholars and judicial precedents, have partial legal appropriateness on the one hand, but on the other hand have legal vulnerable points as well. And there are some viewpoints which stands skeptistic about the usefulness of the theories on the essencial nature of wage, regarding new theories - e.g. theory of wish-interpretation, theory of labor- management relations suspension - as useful when judging ``the sphere of wage-deduction during strike``. But I don`t agree with those viewpoints because I think that theories on the essencial nature of wage are useful for the rational and systematic understanding of various legal problems about wage. In this thesis, after reviewing the traditional theories about the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics), I`ve proposed ``a theory of the compensation for the labor-management relation`` as my unique opinion, and that is a viewpoint, through which perceiving the essencial natue of wage as ``the compensation for the continuation of labor-management relation``, I think that ``the theory of the compensation for the labor-management relation`` has many merits in the normative aspects and in the realistic(managerial) aspects too. The merits in the normative aspects are as follows. Firstly, ``the theory of the compensation for the labor-management relation`` can overcome or dissolve the legal problems of the traditional theories on the essencial nature of wage(theory of the price of labor, theory of the price of labor-force, theory of two-split wage characteristics). Secondly, ``the theory of the compensation for the labor-management relation`` is harmonious with the characteristic of continuous contract of labor-contract. Thirdly, ``the theory of the compensation for the labor-management relation`` can include some payments into the sphere of wage, so can expand the sphere of laborer protection - there`re some payments which have not characteristic of ``the price of labor`` or ``the price of labor-force``, considering recent practices of corporate compensation. And, the merits in the realistic(managerial) aspects are as below. Firstly, ``the theory of the compensation for the labor-management relation`` can be compatable with the recent trend of labor-management relation which has tendancy of accentuating the importance of cooperative aspects more than the importance of hostile and combative aspects. Secondly, ``the theory of the compensation for the labor-management relation`` can be coexident with the recent trend of Business-Administration which regards the characteristic of laborer as Human Resources and emphasizes the importance of Knowledge Management. Thirdly, ``the theory of the compensation for the labor-management relation`` can be harmonious with the change and the diversification of the types of the labor supply which have been derived from the rapid development of ICT(Informatiopn & Communication Technology). Besides many merits in the normative aspects and in the realistic (managerial) aspects, ``the theory of the compensation for the labor-management relation`` can give us substantial implications about wage-related legal problems(``the sphere of wage-deduction during strike`` etc.), thus presents us a new paradigm of wage.