경영권이라는 신화를 넘어

Abstract

The so-called ‘management right’ has been raging fiercely as a means of restricting workers’ exercise of the labor rights in judgments related to dismissal or restructuring after acquiring constitutional status in the wake of the Supreme Court ruling in 2003. It has been abused as a panacea not only in the courts, but also in the executive branch which exercising governmental authority. The Supreme Court precedents before the 1998 IMF economic crisis did not uniformly deny the justification of industrial actions on business matters, but as industrial actions against dismissal or restructuring increased significantly during the IMF, the Supreme Court ruled that ‘highly matters pertaining to management decisions’ cannot be subject to collective bargaining unless there are special circumstances, and even if the implementation inevitably entails changes in the status or working conditions of workers, industrial action against them cannot be considered justifiable. It establishes the inviolability of the management right. However, if you look at the management right jurisprudence in detail, its contents are vague and unclear, and despite the fact that there is no clear basis for arguing that it takes precedence over the labor rights, it is repeatedly repeated by the courts and finally it has become a myth. Since the 2010s, the trial and appellate courts judgments and scholars’ arguments against the management right have continued to appear, and the Supreme Court’s opinion on this has also shown signs of change to some extent, recognizing the validity of the so-called employment security agreement. As a starting point, this article intends to critically review using management right as a legal term in the perspective of comparative law. Even if management right was acknowledged as a legal right, it’s difficult to find substantial legal significance because marked difference in perception its object and content between its advocators. Lastly, even if it is acknowledged as a constitutional right, the court’s attitude has to be criticized for abandoning the interpretation of the law by emphasizing only a priori inviolability of management right, even though the limits should be set through norm-harmonized interpretation with labor rights.