전교조 법외노조통보처분 취소소송의 법적 쟁점과 문제점

Abstract

The ruling judged that the provisions of the Enforcement Decree of this case, which stipulated notification of non-law labor union, violated the rule of law. The core of this case lies not in the Enforcement Decree clause, but in the provisions of the Trade Union Act in this case. Under the Trade Union Act, the scope of 'non-worker' is up to the lawmaker to decide. The provisions of the Enforcement Decree of this case are procedural regulations related to the judgment of non-law unions. Also, the administration's request for rectification and notification of illegal labor unions are only part of such procedures. The plaintiff may file an administrative litigation against such a correction order. The unconstitutionality of the law should be contested through the process of filing an unconstitutional law trial. The majority of the opinions of the ruling viewed the notification of non-law union to the Korean Teachers and Education Workers Union as a formative administrative action, but it is difficult to see such notification as governmental authority. Acknowledging the administrative disposition of such notifications is also inevitable for the relief of rights, but it is not reasonable in light of the structure or system of the text or statute. Even if the labor union law directly stipulates the notification of the non-lawful union by the cancellation ruling in the future, fundamental problem-solving will still remain. By recognizing the formation of administrative measures in notification of non-lawful unions, the establishment of labor unions can be restricted in the manner of notification. Therefore, it is not reasonable to judge the notification of non-law union in this case as a formative administrative act. The report on the establishment of a labor union is viewed as a report requiring acceptance. However, this approach is not suitable for the nature of the report system, and there is a possibility that the establishment of trade unions can be operated on a permit system rather than a report system. It is also more confusing to prescribe this type of report system in law. In addition to this report system, it is also an important issue to ensure the rule of law. In the future, it is necessary to prepare grounds for rejection of the report after receiving the certificate of establishment under the Labor Union Act. In this case, it is necessary to reorganize the procedural regulations on the judgment of non-law unions in accordance with the nature of the report system.