노동쟁의조정법 제정심의의 주요쟁점

Abstract

This article attempts to scrutinize the critical issues with regard to the establishment of the Labor Dispute Adjustment Act 1953 (the LDAA) and the spirit of the legislation in order to let these serve as a lesson to the further legislation. Accordingly, the subject and range of this study are within the limit of major issues at the consideration and discussion for the enactment by mainly analyzing the stenographic records of the Second National Assembly (SNA) which was in the turmoil of the Korean War at the refuge Capital Pusan in 1953. The most crucial points at the consideration on enactment of the LDAA were the forbidden clause with respect to a general strike, and one of the requirements for taking labor dispute regarding the application of the Preliminary Arbitration System into the general industry. Other major points at issue were the limits on a confinement of worker during labor dispute period, the prohibition on the claim for damages due to labor disputes (regardless of lawfulness), and so on. Amongst the most critical issues of the Original Bill of the LDAA (OB) drafted by Social Health Committee of the SNA, two significant changes were made in line with the Revised Bill of the LDAA (RB) submitted by Jin-Han Jeon, who was a member of the SNA and the first Minister of Social Affairs under the regime of President Seung-Man Lee deleting the provision of the OB that prohibited a general strike and newly-enacting the forbidden clause on appointing a general industry as a public interest service in labor dispute for protection against any further administrative intervention. Additionally, the third crucial change regarding the limits on the claim for damages due to labor disputes on the RB of Won-Ho Choi was passed in deleting the warding “unlawful” in Article 12 of the OB that would have been interpreted to make it possible to claim for damages due to unlawful labor dispute, for consistent interpretation with a provisory clause of Article 5 and Article 6 (1) which had already excluded the “unlawful” disputes from the definition of labor dispute. A substantial protection to the freedom of labor dispute hence became ensured. It might thus be argued that, on the contrary to the existing argument which the OB was passed “as drafted,” the bill of the LDAA was passed with the significant structural changes in essentially amending three points as abovementioned as well as even revising the title of the Act from the Labor Dispute Act to the Labor Dispute “Adjustment” Act, for ensuring the substantial right to labor dispute and ultimately broadening the right to collective action. In scrutinizing the discussion of the participant members in the SNA on the consideration of the LDAA, the key features of the deliberation would be found as the critical legal reasoning of the members in the SNA with regard to the essence of enacting the right to labor dispute, in particular the logical arguments of Jin-Han Jeon based on his own experience in labor movement, the legislators’ balanced attitudes toward the controversial issues and their earnest ardor. Finally, although the gloomy legacy from the cruel restrictions on labor disputes as shown in the collective actions of the Cho-Bang (cotton spinning factory) and the destructive actions of Jeon-Pyong (the left wing’s National Council of Trade Union) early before the Korean War had functioned as backgrounds regarding the consideration of the RB and the OB respectively, it is concluded that the legislators’ independent contemplation and passion toward enacting the suitable LDAA to the specific social climate of Korea might bear the fateful fruits.