교원노조법 제2조 헌법불합치 결정(2015헌가38)에 대한 판례 분석

Abstract

The purpose of this study is to interpret and evaluate the Constitutional Court of Korea(hereinafter referred to as ‘CCK’) case. This Case(2015 Heon Ga38) is a precedent for Article 2 of the Teachers' Union Act. namely, it is a CCK's Cases of Professor's Rights to Labor(hereinafter referred to as ‘PRL’) This Adjudication on Constitutionality of Statutes is recommended by the Seoul Administrative Court. The main issue is whether the ban on PRL violates the Constitution. The majority of the CCK's opinion decided that it was against the Constitution, because this regulation violated the fundamental rights of professors(the right to unity). The CCK ruled that while the law could restrict professors' basic labor rights to some extent, the Constitution did not allow them to deprive them of their right to unite. However, the two judges ruled that it was in line with the constitutional regulations, because there was a reasonable reason to treat professors differently from teachers. In other words, professors have a higher social and economic status than teachers, so they don't need labor unions. The criterion for judgment is Article 37 paragraph 2 of the Constitution and the principle of equality before the law. This Article 37(2) is the principle of limiting basic rights(The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.). The CCK judged the right to unite as the essential content of the labor rights. Judging from the case, it can be suggested that professors' guarantee of basic labor rights may vary depending on national, public and private universities. Another obstacle to ensuring professors' basic labor rights is the question: Is the professor a worker? Therefore, the most urgent task is to diagnose professors' perception of trade unions.