쟁의행위 관련 법률 불명확성에 의한 권리침해의 예방 및 구제제도의 고찰

Abstract

The right of collective action is ensured in the Constitution and the detailed way to exercise the right of the industrial action is ruled in Trade Union and Labor Relations Adjustment Act(TULRAA). The justice of the industrial action violating some restriction and prohibition article of TULRAA is denied. There is criticism that the restriction and prohibition article about the industrial action in TULRAA may constrict the right of collective action ensured in the Constitution. The restriction and prohibition article about the industrial action in TULRAA should correspond with the legislative purpose or the legislative intent of the Constitution. The constitutionality test for the law should be conducted by the constitutional court, but it cannot be conducted by the constitutional court because our constitutional court adopts the method of konkrete Normenkontrolle, not abstrakten Normenkontrolle. Therefore, there is possibility that the basic right and freedom of the people can be infringed by the law which is unconstitutional. The people that their basic right ensured in the Constitution is infringed by the exercise of public power can submit the constitutional complaints. But they cannot submit the constitutional complaints about the court decision because the court decision is excluded from the object of the constitutional complaints by the Constitutional Court Act. The reality is that the participant in the illegal industrial action takes all the responsibility for the illegal act when the industrial action is judged to be illegal by the court after the fact. It may violate the principle of liability with fault, because the participant did not realized that the industrial action was illegal not later than court judgement. It seems that the illegal act is caused by the legal uncertainty related to the right of collective action. Therefore, the civil and criminal responsibility of the participant for the illegal act should be extenuated to be faithful to the principle of liability with fault.