노동위원회 신뢰제고와 활성화를 위한 제언

노병호(Roh Byoung ho) 충북대학교 법학연구소 2016 法學硏究 Vol.27 No.2

Since the establishment of the Labor Relations Commission, its function has been expanded due to the increase in labor disputes caused by the complicated relations between labor and capital and labor market. Thus, expectations for the Labor Relations Commission as a dispute resolution organization for quick and fair resolution of labor disputes are growing and there are more and more requirements but both labor and management do not recognize the Labor Relations Commission as an trustworthy or fair organization with expertise in resolving labor disputes in terms of conciliation and adjudication at a satisfactory level. The reliability problem for the Labor Relations Commission results in the institutional problem and problem of expertise of chairperson, members of standing committee, Commissioner and commissioners and investigators who are members of the Labor Relations Commission and the fixedness of conciliation and adjudication. Under the current system where the Labor Relations Commission is an administrative committee belonging to the Ministry of Employment and Labor and thus, the Ministry of Employment and Labor has personnel matters and budgeting rights, the Labor Relations Commission is considered not to be free from the administration, causing distrust. To solve this problem, the Labor Relations Commission should be a commission directly responsible to the President or if maintaining the current system, independence of the Labor Relations Commission should be ensured in the personnel matters and budgeting. A person with more than 5 years of experience in the relations between labor and capital should be appointed as the chairperson of the local Labor Relations Commission and those with law career or majors of labor law should be appointed as members of member of a standing committee to enhance professionalism and the number should be increased significantly and ambiguity of each role should be resolved. Also, qualifications should be strengthened to ensure professionalism in appointment of Labor Relations Commission members and Expertise in Labor Relations Act and experience in the workplace should be emphasized for adjudication members and conciliation members, respectively and the fairness of appointment procedures should be ensured. An investigator rotationally works in the Ministry of Employment and Labor and Labor Relations Commission according to the rotation transfer of civil servants and Ministry of Employment and Labor job rotation should be abolished or limited to ensure the continuity of responsible job in order to enhance the expertise of investigators. In addition, neutrality should be ensured in the selection of members in the event processing process and configuration of the adjudication commission and conciliation commission and fairness should be sought in adjudication procedures and conciliation procedures. Furthermore, it is important to deal with labor disputes quickly in the Labor Relations Commission and to do this, a smooth resolution by reconciliation is desirable in terms of the nature of the relations between labor and capital. Reconciliation recommendation meeting and reconciliation system before adjudication test-operated in Chungbuk Labor Relations Commission satisfy this condition. We think that this needs to be institutionalized. To activate the Labor Relations Commission, it is necessary to expand its function in order to respond to the demands of resolving labor disputes quickly and fairly. One of measures meeting these requirements is to allow the Labor Relations Commission to handle overdue wage remedy cases.

재판상화해의 활성화를 위한 법원의 적극적 역할

권혁재 경북대학교 법학연구원 2018 법학논고 Vol.0 No.62

Reconciliation in civil litigation can be called Alternative Dispute Resolution (ADR) in which a judge plays a role as an arbitrator from the viewpoint of the process of resolving disputes. In trying to draw out resolution in litigation, the court, which has a reconciliation proposal in its mind, provides a process for explanation and discussion with the parties to a suit or litigation representatives. As the judge, as a representative of public interests, would not hesitate to play a role as a guardian seeking to embody the spirit of the contemporary law in a concrete case, it is generally likely that the level of the judge's authority and participation is extremely high in drawing out the conclusion of reconciliation in litigation. The positive intervention of the court can be seen as an integral part in this model. As a result, this model should be required to safeguard the due process (procedure-guaranteeing) principle for the parties to a suit to the maximum level, considering that this model is not compatible with the original nature of the reconciliation system. The negative thoughts against the positive actions by the court to promote reconciliation in litigation are nothing but the preoccupation with the stereotype that even reconciliation in litigation should be reached by free agreement by the parties to a suit alone. The concrete legal standards can be drawn out as a consequence through the legal proceedings on the basis of disputed elements in the process of reaching a final agreement through mutual communication between the parties to a suit. Both judgment and reconciliation have an aspect of the formation of legal standards. The only difference between them is that the formation of legal standards by reconciliation is relatively more flexible. Reconciliation could be reached as a result of oral proceedings held between the conflicting parties in the legal proceedings, or any conclusion can be reached only after the court issues a ruling in some cases. They are identical to each other in that they are a kind of law-forming process through the legal proceedings. Owing to these characteristics, it is necessary that the court should establish a variety of aid measures, implement them and at the same time put some restrictions on the parties to a suit beyond existing practices that the court approves of the autonomous agreement on disputes between individuals and makes their agreement go into effect. The adjudication reconciliation of Japanese civil procedure law can be seen as a system which can be properly used for both the following cases: cases in which although the two sides have fulfilled their responsibilities for arguing and proving their positions, they want to leave concrete reconciliation to the court since both sides don't want to see their disputes settled by the court‘s black-and-while ruling; and cases in which although the two sides have fiercely carried out legal battles after selecting their own litigation representatives, its consequences cannot be predicted. In exercising discretion to recommend reconciliation of the Korean Civil Procedure Act, whose system is extremely similar to that of adjudication reconciliation of Japanese civil procedure law, it is necessary that the court should listen to the parties to a suit and introduce a system in which the two sides are required to vow in advance to accept the decision to recommend reconciliation by the court. 소송상의 화해는 분쟁해결의 과정이라는 측면에서 보면 법관이 중개자로서의 역할을 하는 ADR이라고 할 수 있다. 소송상화해에서는 법원은 화해의 실체적·절차적 공정을 전제로 하여 사안의 내용과 조화를 이루는 화해안을 염두에 두고 당사자나 소송대리인과 설명·협의를 진행한다. 법관은 공익의 대표자로서 그 시대의 법정신을 구체적인 사건에 구현하고자 하는 후견인적 역할을 마다하지 않을 것이므로 소송상화해의 결론을 도출하는 데 있어서도 법관의 권한이나 관여의 정도가 매우 높아지는 것이 일반적이다. 소송상화해의 촉진을 위하여 법원이 적극성을 발휘하는 데 대하여 부정적인 사고는 소송상화해의 경우에도 오로지 당사자들만의 자유로운 합의에 의한 것으로 보는 고정관념의 집착에 지나지 않는 것이다. 소송절차를 통하여 당사자의 상호소통에 의한 최종적 합의에 이르는 과정에서 분쟁사실을 기초로 하여 구체적인 법규범의 형성이라는 결과물이 도출될 수 있다. 판결이나 화해 모두 법규범의 형성이라는 측면을 가지고 있는 것이다. 그 차이라고 한다면 화해에 의한 법규범의 형성은 보다 탄력적 성격을 갖는 것으로 볼 수 있다. 소송절차에서 대립당사자 상호간의 변론(對席的辯論)이 진행된 결과로서 화해에 이를 수도 있을 것이고, 판결까지 가는 경우도 있는 것이다. 양자는 모두 소송절차를 통한 법형성 과정이라는 점에서 공통적 성격을 갖는 것이다. 이러한 특성으로 인하여 개인 간의 자율적 분쟁해결 합의에 대하여 법원이 승인하고 효력을 부여하는 것을 넘어서 법원이 다양한 지원방안을 마련하여 실시하면서 동시에 일정한 규제를 가하는 것도 필요하다. 일본민사소송법상 裁定和解는 쌍방의 당사자가 주장·입증책임을 다하였으나 법원의 一刀兩斷적인 판결에 의한 분쟁해결을 원하지 않는 분위기여서 구체적인 화해의 내용을 법원에 일임하고자 하는 경우나, 쌍방당사자 모두 소송대리인이 선임되어 치열한 법정다툼을 전개하였으나 그 결과를 예측할 수 없는 경우 등에 적절히 이용할만한 제도라 할 수 있다. 裁定和解와 제도상의 유사점이 많은 우리 민사소송법상의 화해권고결정을 운영함에 있어서 법원은 결정에 앞서 당사자의 의견을 청취하고, 당사자에게 미리 법원이 정하는 화해권고결정에 대하여 승복하기로 하는 약정을 하는 방식도 도입할 필요가 있을 것이다.