쟁의행위의 절차적 정당성에 관한 소고 : 조합원찬반투표와 조정전치주의를 중심으로 focused on the majority vote by union members and the prior mediation related = A Study on the Procedural Legitimacy of Industrial Action

다국어 초록 (Multilingual Abstract)

It goes without saying that Labor Union can exercise the right of industrial action in order to carry its point, yet all the industrial actions are not judged as being legitimate. Regarding the legitimacy of industrial action, usually 4 requisites should be fulfilled in accordance with the Supreme Court: subject, purpose, procedure, and ways & means. If it is a legitimate industrial action, the exemption from civil or criminal liability and the protection from unfair labor practice system will be given, otherwise related Acts will be applied. Taking into account that most of industrial actions are subject to criminal punishment, judging legitimacy of industrial action is a serious matter.
This brief thesis sets the scope and treats the procedural legitimacy of industrial action, especially focused on the majority vote by union members and the prior mediation related, and concludes that the construction of the procedural requisites is inclined to achieve the institutional purpose or policy preceded over principles of law. It expressly points out that applying criminal law, on the charge of business interference to the case which has no other unlawfulness but simply failed to follow procedural requirements, is not harmonized with the intent of the Constitution that secures the right of collective action. The change of Court's conservative attitude is expected henceforth.

목차 (Table of Contents)

• Ⅰ. 머리말
• Ⅱ. 조합원 찬반투표와 쟁의행위의 정당성
• 1. 학설·판례의 입장
• 2. 검토
• Ⅲ. 조정전치주의와 쟁의행위의 정당성
• 1. 조정절차를 거치지 아니한 쟁의행위의 정당성
• 2. 노동위원회의 행정지도와 관련된 문제점
• Ⅳ. 맺음말