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.

쟁의행위의 정당성 판단과 권리분쟁

김소영(Kim, Soh - Yeong) 충남대학교 법학연구소 2016 法學硏究 Vol.27 No.2

우리 학설과 판례는 그 동안 노사간에 주장의 불일치로 인하여 발생하는 분쟁을 권리분쟁과 이익분쟁으로 구분하고, 이를 쟁의행위의 정당성 판단과 연계하여 해석해왔다. 이와 관련하여 권리분쟁이 쟁의행위의 대상에 포함되는지 여부, 나아가 권리분쟁을 대상으로 하는 쟁의행위의 목적의 정당성 여부가 학계를 중심으로 논의되어 왔다. 권리분쟁을 대상으로 하는 쟁의행위의 정당성을 부인하는 입장은 1998년 노조법 개정으로 노조법 제2조 5호의 ‘노동쟁의’가 노사간에 근로조건의 「결정」에 관한 주장의 불일치로 인하여 발생한 분쟁상태로 정의되면서 권리분쟁은 노동쟁의에 포함되지 않는다고 주장한다. 그러나 권리분쟁에 대하여 민사소송 등 다른 구제절차가 열려 있다고 해서 권리분쟁을 목적으로 하는 쟁의행위의 정당성을 부인하는 논리는 집단적 노사자치의 원리에 맞지 않는다. 이는 근로조건의 향상을 위하여 단체행동권을 인정한 헌법 제33조 제1항을 부당하게 제한하는 해석론이다. 현실적으로 법원이나 노동위원회에 의한 권리분쟁 해결시스템이 갖추어져 있다고 보기도 어렵다. 따라서 권리분쟁에 관한 사항이 쟁의행위의 목적으로서 정당한가 여부에 관해서는 우리나라의 단체교섭구조와 단체협약제도에 대한 해석론, 노사분쟁해결 시스템의 문제점을 바탕으로 헌법의 노동기본권 보장 취지에 따라 판단해야 한다. In Korea, right of collective action is guaranteed as fundamental labor rights of workers by the Constitution. The Constitution guarantees workers’ three labor rights as follows. Article 33(1) of the Constitution stipulates that “to enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Fundamental labor rights of the Constitution should be shaped into the promotive institution through labor legislation. Trade Union and Labor Relations Adjustment Act (TULRAA) is to improve the working conditions and to improve the economic and social status of workers by securing the workers’ rights of collective action pursuant to the Constitution. TULRAA is subordinate to the Constitution, and then TULRAA’s lawmaker should enact the provisions about the labor relations and the court should execute the law comply with the guiding philosophy on the Constitution. From the constitutional standpoint, industrial action is constitutionally expected normal phenomenons as a process of exercise of worker’s fundamental right guaranteed by the Constitution. It is undisputed that the right to “act collectively” includes the right to strike. No employer shall claim damages against a trade union or workers in cases where he/she has suffered damages because of industrial action under the TULRAA. Therefore industrial actions must be “justifiable” in order to be protected by the TULRAA, and the Constitution is understood to be predicated on the same requirement. But there is no definition of “justifiability” in the TULRAA except the proviso of Article 37 (1) which says that no industrial action, in its purposes, and processes, shall violate legislations and public order. That is, de novo, industrial action was not allowed by the law. The courts usually look into the objective and the manner of industrial action by strict interpretations owing to the legal forms such as passive statutory immunities, not based on the workers’ fundamental labor right. The standard of “justifiability” can vary according to the objective of the industrial action whether it was justifiable or not. There is some controversy whether rights dispute is justifiable. The Supreme Court has consistently refused such a position as the rights dispute can be an objective of the industrial action, contending that TULRAA permit the trade union to act collectively for interests dispute. Decision of the Supreme Court base on the definition of the term “labor disputes” of the Article 2 (5) of TULRAA which provides that the term “labor disputes” means any controversy or difference arising from disagreement between the trade union and employer or employees association concerning “the determination” of terms and conditions of employment such as wages, working hours, welfare, dismissal, other treatment, etc. But the judiciary should recognize the rights dispute as justifiable objective of industrial action at an affirmative view based on the workers’fundamental labor right. The industrial action of workers should be recognized in a wider level based on the fundamental labor rights of the Constitution, because the civil suits for damages caused by industrial action for large amount are maliciously used as means to fundamentally block the basic right of workers.

미국의 위법 쟁의행위에 대한 민ㆍ형사상 책임

신동윤(Sin, Dong-Yun) 한국노동법학회 2017 노동법학 Vol.0 No.62

Whether or not a strike is unlawful is recognized under the strike"s purpose, the time"s appropriateness, the striker"s action as the National Labor Relations Board suggested. The National Labor Relations Act provides the unfair labor practice by labor unions under Article 8(b) so that the industrial action is unlawful in case that labor unions or their agents violate the unfair labor practice under Article 8(b). Therefore, a union or an individual employee has a civil and criminal liability with respect to unlawful industrial action. In other words, an employer can impose a civil and criminal liability with unlawful industrial action on the union or individual employee. The civil liability with unlawful industrial action consists of the injunction, compensation for damages, or disciplinary action. By contrast, the criminal liability composes the fine or imprisonment. The following suggestion can be reviewed from the civil and criminal liability with respect to unlawful industrial action. Firstly, the injunction of the National Labor Relations Board is a first measure against unlawful industrial action and if a union does not follow a court order, it will be punished as the fine or imprisonment resulting from the contempt of court. This injunction takes a measure with unlawful industrial action and imposed the compulsion through heavy punishments if the order of court is not followed. Secondly, the RICO and Hobbs Act regulate the unlawful action of labor unions in that the National Labor Relations Act does not provide a penalty clause with violent action of labor unions as they take measures with respect to unlawful industrial action. As a result, as the injunction can take measures quickly against unlawful industrial action and the RICO and Hobbs Act as an independent law apply to unlawful industrial action, the institution and policy plan shall be introduced in order to decide the civil and criminal liability with respect to unlawful industrial action in Korea.

쟁의행위에 대한 영국의 법적 규율과 2016년의 변화

심재진(沈載珍) 서울대학교 노동법연구회 2017 노동법연구 Vol.0 No.42

영국에서는 단체행동권 보장이 독특하게도 민사상 불법행위 책임의 면책의 형식으로 되어 있다고 알려져 있다. 여기에서 더 나아가 이 글은 면책의 요건으로 쟁의행위의 실체적 요건 이외에 절차적 요건을 엄격하게 규정하고 있음을 확인한다. 영국의 통합노동조합법은 복잡하고 상세한 쟁의행위 찬반투표 규정뿐만 아니라 노동조합이 쟁의행위에 이르기까지의 각 단계별로 사용자와 조합원들을 대상으로 상세한 통지의무를 정하고 있고, 이러한 절차적 의무 조항 각각은 그 하나의 위반만으로도 쟁의행위 면책이 이루어지지 않도록 규정한다. 복잡하고 상세하고 위반의 효과면에서 강력한 절차적 제한 규정은 노동조합이 쟁의행위를 하는 것을 대단히 어렵게 만든다. 영국에서 임시금지명령이 쟁의행위 억제수단으로 강력하게 작용하는 데에는 복잡하고 강력한 쟁의행위의 절차적 요건 규정이 기여하고 있다. 이 글은 쟁의행위에 대한 영국노동법의 절차적 규제는 2016년의 법개정을 통해 더욱 더 강화되고 있음을 확인한다. 쟁의행위 찬반투표의 유효요건으로서 투표율 요건과 중요공공서비스 분야에서의 재적 조합원 대비 찬성율 요건은 이러한 절차적 규제를 강화하는 핵심적인 내용이다. 이외에도 투표용지 기재사항의 추가와 쟁의행위 찬반투표 결과 통지 내용의 변경 등도 절차적 규제를 더욱 강화하는 방향으로 이루어졌다. 피케팅의 7가지 추가 요건을 갖추지 않는 경우 피케팅 자체를 보호받는 쟁의행위에서 배제하는 것도 마찬가지이다. 또한 쟁의행위를 포함한 노동조합의 활동에 대한 인증관의 역할 및 권한을 대폭적으로 강화한 것도 이러한 절차적 요건에 대한 규제를 더 효과적으로 하기 위한 것이다. 2016년 법개정으로 사용자가 청구하는 쟁의행위에 대한 임시금지명령은 쟁의행위의 제한수단으로서 더욱 더 강력해질 것이다. It is well known that, in the UK, the right to collective action is distinctively guaranteed as the form of immunity from civil liability, when substantive requirements of industrial action are complied with. This article further confirms that procedural requirements of industrial action have to be observed in oder to be protected from civil liability. Labour law in the UK sets out a detailed notification obligation of trade unions for employers and trade union members at each stage of the process of the preparation of industrial action as well as complicated and detailed ballet requirements for industrial action. Such detailed procedural requirements is very strict in the sense that not complying with any of such detailed procedural requirements makes industrial action unprotected in tort law. Procedurally complex and strict requirements of industrial action make it very difficult for trade unions to engage in industrial action. In the UK, the frequent and effective use of interim injunctions by employers can be explained by the existence of such requirements. This article confirms that procedural regulation of UK labor law on industrial action is further strengthened through the amendment of labour law in 2016. The requirements of 50% for ballet turnout in all areas and 40% quorum of those entitled to ballet in important public services are key to strengthening this procedural restriction. In addition, the addition of the details on the voting paper, and the change in the notification of ballet result of ballet were also made to strengthen the procedural restriction. The seven additional requirements of picketing, the violation of any of which leads it unprotected in tort law, and enhanced power of the Certification Officer in relation to trade union activities for industrial action demonstrate the strengthened procedural restriction. As a result of the 2016 amendments to the UK labour law, interim injunctions by employers will become more and more powerful as a means of limiting industrial action.

준법투쟁의 정당성에 관한 연구

김소영 경희대학교 법학연구소 2016 경희법학 Vol.42 No.3

A trade union may take an industrial action as means to have a strong position at the bargaining table, and an industrial action which is taken in a legitimate manner shall exempt the union from any civil or criminal liability. Industrial action engaged in by employees can include typical methods such as strikes, picketing, slowdown and work-to-rule. No employer shall claim damages against a trade union or workers in cases where he/she has suffered damages because of industrial action under the Trade Union and Labor Relations Adjustment Act (TULRAA). But there is no definition of “justifiability” in the TULRAA except the proviso of Article 37 (1) which says that no industrial action, in its purposes, and processes, shall violate legislations and public order. In particular, there is some controversy whether a work-to-rule is an industrial action, and whether it is justifiable or not. Work-to-rule can be often utilized by the workers of public services as railroads and city railroads, because special care is stipulated on method of resolution and procedures of industrial actions in public services, which, unlike those in ordinary businesses, are likely to have an adverse impact on the national economy and people’s daily living. The Constitution guarantees workers’ three labor rights as follows. Article 33(1) of the Constitution stipulates that “to enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Fundamental labor rights of the Constitution should be shaped into the promotive institution through labor legislation. Trade Union and Labor Relations Adjustment Act (TULRAA) is to improve the working conditions and to improve the economic and social status of workers by securing the workers' rights of collective action pursuant to the Constitution. TULRAA is subordinate to the Constitution, and then TULRAA’s lawmaker should enact the provisions about the labor relations and the court should execute the law comply with the guiding philosophy on the Constitution. However the Supreme Court usually look into the objective and the manner of a work-to-rule by strict interpretations owing to the legal forms such as passive statutory immunities. Although the industrial action of public service as railroads is likely to jeopardize people’s everyday life, the industrial action of workers’ should be recognized in a wider level based on the fundamental labor rights of the Constitution. In fact, the civil suits for damages caused by industrial action for large amount are maliciously used as means to fundamentally block the basic right of workers. 노동조합의 준법투쟁으로 인하여 업무의 ‘정상적’ 운영이 저해되는 경우, 이는 쟁의행위로서 파업이나 태업과 같은 효과를 가져 올 수 있다. 준법투쟁이 쟁의행위로 인정되는 경우, 준법투쟁은 「노동조합 및 노동관계조정법」의 쟁의행위 관련 규제를 받게 되며, 그 정당성 여부는 일반적 쟁의행위의 정당성 판단에 대한 판례법리에 의해 결정된다. 따라서 준법투쟁에 있어서의 노동법적 쟁점은 ‘준법투쟁의 쟁의행위 해당성 여부’와 ‘준법투쟁의 정당성 판단’으로 요약된다. 본 논문은 준법투쟁의 ‘쟁의행위 해당성’ 여부에 대한 학설과 판례의 입장을 검토하고, 준법투쟁의 유형에 따른 판례의 정당성 판단의 추이를 분석하고, 결론으로서 준법투쟁의 정당성 판단구조에 대한 방향성을 제시하고자 하였다. 준법투쟁이 쟁의행위에 해당되느냐에 대하여 학설은 사실정상설과 법률정상설로 나뉘어 있는데, 대법원은 그 동안 ‘업무의 정상한 운영이란 업무가 적법하게 운영되는 상태가 아니라 사실상 정상적인 작업상태를 가리킨다고 보는’ 사실정상설을 취해왔다. 그런데 ‘업무의 정상한 운영이란 업무가 적법 내지 법률상 정당하게 운영되는 상태만을 의미한다’고 보는 법률정상설을 취하는 하급심 판결들이 최근 내려지고 있다. 사실정상설을 취하는 경우 근로기준법에서 처벌한다고 규정한 사용자의 위법한 지시라도 근로자는 이에 복종하여야 한다는 모순에 빠질 뿐만 아니라 근로자를 보호하려는 근로기준법의 관계조항의 입법 의도는 퇴색하게 되는 바, 준법투쟁에 대하여 목적적․합헌법적․현실 노사관계 정합적인 해석론의 정립이 요구된다.

쟁의행위의 형사면책법리에 관한 해석론 -노동조합 및 노동관계조정법 제4조와 형법 제20조의 관계를 중심으로-

禹希叔 ( Hee Sook Woo ) 서울대학교 법학연구소 2012 서울대학교 法學 Vol.53 No.3

In historical background, the Constitution allows industrial action to exemption from criminal responsibility but the Labor [Trade] Union Act and the Criminal Code allows industrial action to criminal responsibility. And such an attitude is a strong influence on the Constitutional Court and the Supreme Court`s decision. So, it means that industrial action violating the Labor [Trade] Union Act lose its justification and comes under Section 1 Article 314 of the Criminal Code. But it doesn`t matter whether industrial action is criminal responsibility or not, because it is just as the right of collective action according to the Constitution. Of course, it`s criminal act to violence, threat, destruction etc. occurred in the process of industrial action. But the Constitutional Court and the Supreme Court`s decision did not separate industrial action and criminal act, but it integrated. These decisions converted industrial action into criminal act. In Korea, it is not more an assertion of the right to collective action. The Constitutional Court also decided on 2010 that industrial action violating the Labor [Trade] Union Act comes under Section 1 Article 314 of the Criminal Code. So, The Supreme Court brought forward the same opinion on 2011. The Court judged to refuse a supply of labor as a group by forcible concept and predictability. But under Section 1 Article 33 of the Constitution and Section 6 Article 2 of the Labor [Trade] Union Act, industrial action have excluded the possibility that there can be criminalize, In this case, Article 4 of the Labor [Trade] Union Act has to interpret in Labor Law relationships, Because Labor Law provides guidelines on how to punish violators of offense.

노동3권 보장과 쟁의행위의 개념 및 민·형사상 면책의 의미

한광수(Han, Gwang-soo) 한국비교노동법학회 2013 노동법논총 Vol.27 No.-

The Constitution explicitly protects the right to take Collective Action as basic workers’ rights. Although Trade Union and Labor Relations Adjustment Act provide regulations associated with the right to collective action, its practice is restricted. The Labor Union Act provide us with Labor dispute and Industrial Action. Article 3. and Article 4. include the provisions to reduce the burden on workers from Industrial Action and Collective Bargaining; “No employer shall claim damages against a trade union or workers in cases where he/she has suffered damage because of collective bargaining or industrial action under this Act” and “The provisions of Article 20 of the Criminal Code shall apply to justifiable activities undertaken to achieve the purpose of Article 1 as collective bargaining, industrial action, or other activities by trade unions”. Three fundamental workers’ rights are labour rights regulated by the Constitution. These are the right adopted in many countries as well as the international norms admitted by UN and ILO. There is no doubt that industrial action is considered as the the practice of the right to collective action. The Industrial Action called ‘union’, ‘dispute situation’, ‘their claims achievement’, ‘use of force’ has already included illegal substances. Employers lodged a compensation claim against the exercise of the workers’ rightto strike, which is used state punishment power if it comes to that. It is said that it is an unfair practice, the conduct should be limited. If workers are going to take Industrial Action, it is certain that it is done in a fair way. Moreover, it is required to establish the concept of the industrial action that are not included collective action. Limitaion or restrictions of actions that are not included in the concept of the industrial action will be applied.

준법투쟁의 정당성에 관한 연구

김소영(Kim, Soh-Yeong) 경희대학교 경희법학연구소 2016 경희법학 Vol.51 No.3

노동조합의준법투쟁으로인하여업무의‘정상적’ 운영이저해되는경우, 이는쟁의행위로서 파업이나 태업과 같은 효과를 가져 올 수 있다. 준법투쟁이 쟁의행위로 인정되는 경우, 준법투쟁은 노동조합 및 노동관계조정법 의 쟁의행위 관련 규제를 받게 되며, 그 정당성여부는 일반적 쟁의행위의 정당성 판단에 대한 판례법리에 의해 결정된다. 따라서 준법투쟁에 있어서의 노동법적 쟁점은 ‘준법투쟁의 쟁의행위 해당성 여부’와 ‘준법투쟁의 정당성판단’으로 요약된다. 본 논문은 준법투쟁의 ‘쟁의행위 해당성’ 여부에 대한 학설과 판례의입장을 검토하고, 준법투쟁의 유형에 따른 판례의 정당성 판단의 추이를 분석하고, 결론으 로서 준법투쟁의 정당성 판단구조에 대한 방향성을 제시하고자 하였다. 준법투쟁이 쟁의행위에 해당되느냐에 대하여 학설은 사실정상설과 법률정상설로 나뉘어있는데, 대법원은그동안‘업무의정상한운영이란업무가적법하게운영되는상태가아니라 사실상 정상적인 작업상태를 가리킨다고 보는’ 사실정상설을 취해왔다. 그런데 ‘업무의정상한 운영이란 업무가 적법 내지 법률상 정당하게 운영되는 상태만을 의미한다’고 보는법률정상설을 취하는 하급심 판결들이 최근 내려지고 있다. 사실정상설을 취하는 경우 근로기준법에서 처벌한다고 규정한 사용자의 위법한 지시라도 근로자는 이에 복종하여야 한다는모순에빠질뿐만아니라근로자를보호하려는근로기준법의관계조항의입법의도는퇴색하게 되는 바, 준법투쟁에 대하여 목적적·합헌법적·현실 노사관계 정합적인 해석론의 정립이 요구된다. A trade union may take an industrial action as means to have a strong position at the bargaining table, and an industrial action which is taken in a legitimate manner shall exempt the union from any civil or criminal liability. Industrial action engaged in by employees can include typical methods such as strikes, picketing, slowdown and work-to-rule. No employer shall claim damages against a trade union or workers in cases where he/she has suffered damages because of industrial action under the Trade Union and Labor Relations Adjustment Act (TULRAA). But there is no definition of “justifiability” in the TULRAA except the proviso of Article 37 (1) which says that no industrial action, in its purposes, and processes, shall violate legislations and public order. In particular, there is some controversy whether a work-to-rule is an industrial action, and whether it is justifiable or not. Work-to-rule can be often utilized by the workers of public services as railroads and city railroads, because special care is stipulated on method of resolution and procedures of industrial actions in public services, which, unlike those in ordinary businesses, are likely to have an adverse impact on the national economy and people’s daily living. The Constitution guarantees workers’ three labor rights as follows. Article 33(1) of the Constitution stipulates that “to enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Fundamental labor rights of the Constitution should be shaped into the promotive institution through labor legislation. Trade Union and Labor Relations Adjustment Act(TULRAA) is to improve the working conditions and to improve the economic and social status of workers by securing the workers rights of collective action pursuant to the Constitution. TULRAA is subordinate to the Constitution, and then TULRAA’s lawmaker should enact the provisions about the labor relations and the court should execute the law comply with the guiding philosophy on the Constitution. However the Supreme Court usually look into the objective and the manner of a work-to-rule by strict interpretations owing to the legal forms such as passive statutory immunities. Although the industrial action of public service as railroads is likely to jeopardize people’s everyday life, the industrial action of workers’ should be recognized in a wider level based on the fundamental labor rights of the Constitution. In fact, the civil suits for damages caused by industrial action for large amount are maliciously used as means to fundamentally block the basic right of workers.

쟁의행위와 민사책임 -판례분석을 중심으로-

신권철 ( Kwon Chul Shin ) 법조협회 2011 法曹 Vol.60 No.6

Article 33 Paragraph (1) of the Constitution provides To enhance working conditions, workers shall have the right to independent association, collective bargaining and collective actions. According to the Constitutional clause, article 3 of Trade union and labor relations adjustment act(hereafter the Act) provides In case where an employer has suffered damages due to collective bargaining or strike(industrial action) under this act, he shall not claim damages against a trade union or workers. The supreme court have decided that illegal strikes should not be recognized as protected by the Act. According the decisions of supreme court, in order that an industrial action by workers can constitute a lawful action, various conditions including the following must be met and satisfied: firstly, the leader of the industrial action must be qualified to a representative of the labor to the collective bargaining; secondly, the purpose of the industrial action is to facilitate self-governing negotiations between labor and management for the improvement of working conditions; thirdly, the industrial action should commence when the employer rejected the collective bargaining in response to the specific requests of workers for the improvement of their working conditions, the procedures required by applicable laws and regulations including the decision by union members on approval or disapproval of the strike must be carried out; and fourthly, the means and way of the industrial action must be harmonious with the employer`s property right and shall not fall under any exercise of violence. Thus, if a strike pursues various purposes and some of which are not justifiable, the legitimacy of the strike itself should be determined by the legitimacy of the essential purpose of the strike and if a labor union violates government procedures, their actions become illegal. This study is dealing with the issues on the civil liability of industrial actions. This study analyzes judicial precedents of the supreme court about illegal strike case. In conclusion, the proposal of this study is that the difference between strike as the right to collective refusal of labor and illegal action attendant upon strike as positive tort should be recognized.

최소업무의 유지의무 : 쟁의행위권 행사의 한계로서 인정하는 법이론적 검토 A Review of the Legal Theory Recognizing the Duty As Limitation on the Right of Industrial Action

김홍영 忠南大學校 法學硏究所 2004 法學硏究 Vol.15 No.1

While industrial action is an employee's activity to put economic pressure on an employer in a way of impeding employer's business, certain parts of business must not be stopped but be maintained for public interest. However, current labor legislation and collective agreements are not enough to provide an appropriate system maintaining certain parts of business for protection of public interest. Accordingly, this paper purports to review a present legal system based on theoretical analysis of maintaining certain parts of business from the critical point of view. Advanced labor relation is to keep self-control and responsibility. Especially, the industrial action in public interest businesses must be exercised within the socially acceptable extent. That is, in exercising the right of industrial action, an employer and employee must maintain minimum service. Maintaining minimum service for public interest can be considered as an employer and employee's activity to fulfill their social responsibility as members of the society. Restricting the right of industrial action requiring maintenance of minimum service is to harmoniously warrant the right of industrial action and public interest by preventing excessive encroachment on the right of industrial action. Maintaining minimum service for public interest can be accomplished by the culture and practices between an employer and employee or by observing maintenance of minimum service stipulated as a duty under the law. Today, both an employer and employee do not have complete consciousness in Korea that necessary minimum service must be maintained for public interest. As the liberty of industrial action has been expanded, the necessity to recognize the limit of industrial action has been also increased. In this respect, it is demanded to introduce the duty of maintaining minimum service for public interest into labor legislation.