공무원의 노동3권 제한의 한계에 대한 위헌심사 - 헌법재판소 2008. 12. 26. 선고, 2005헌마971 등 결정 평석 -

Abstract

The Constitution of Article 33 defines to guarantee the labor rights. So the legal issue of labor rights in our country must be discussed the constitutional point of view. Regarding the labor rights of public officials, our Constitution specifies the restrictions of labor rights of public officials such as “Only those public officials who are designated by Act, shall have the right to association, collective bargaining and collective action”(the Constitution of Article 33 Section 2). Constitutional Court retained the same judgment that the National Assembly as a lawmaking institution has wide discretion to decide whether to allow public officials to exercise the rights of association, collective bargaining and collective action, and how to limit the type and scope of such actions through legislating related laws and regulations. However, the dissenting opinion in part in this case is more reasonable than majority opinion of the Court. It is appropriate that the dissent in part can review actually by the standards of judicial review such as the principle of proportionality and the principle of essence guaranty in the constitutional trial. So interpretation about the Constitution of Article 33 Section 2 should be severely restricted the legislative formation power of the National Assembly by limitations of the principle of proportionality, the principle of essence guaranty from the Constitution of Article 37 Section 2.