부당노동행위 구제신청과 구제명령의 상대방인 사용자의 의미— 대법원 2022. 5. 12. 선고 2017두54005 판결을 중심으로 —

Abstract

The target judgment simply presupposes that an employer who is the counterparty to an application for remedy and a order of remedy includes all ‘business owners’, ‘business managers(the persons responsible for the management of a business)’, or ‘the persons who act on behalf of a business owner with regard to matters concerning workers in the business’ as prescribed in Article 2, 2. of the Trade Unions and Labor Relations Adjustment Act of Korea(TULRAA). However, such a simple conclusion of the court has a considerable problem that is difficult to explain if the system and meaning of Article 81 (1) of the TULRAA are systematically recognized. This is because it is in line with literary interpretation that an employer who is a criminal offender under Article 81 (1) of the current TULRAA is limited to the persons who have committed an act of punishment, and therefore, the persons who are not punished under this provision cannot be a counterparty to a order of remedy. The conclusion that the court tried to reach in the target judgment can be recognized as valid. However, the legal composition is not logical. The only way to solve these problems is to improve legislation. Therefore, I propose to establish a general definition of unfair labor practices in the TULRAA. In addition, the Labor Relations Commission's remedy procedure for unfair labor practices should be separated from Article 81 of the current TULRAA, which is a penal provision.