업무개시명령에 관한 헌법적 고찰 ― 의료법과 화물자동차 운수사업법을 중심으로 ―

Abstract

In Korea, the ILO’s Forced Labour Covention 1930 came into force in 2022. Since then, the issue of compliance with the Convention and the legitimacy of the restriction of constitutional rights following the work commencement order has also been an important constitutional issue. Therefore, this article compared and reviewed the Medical Service Act in 2024 and the work commencement order under the Cargo Trucking Transport Business Act in 2022. In addition, the legitimacy of the restriction of constitutional rights due to the work commencement order was examined through the principle of the restriction of constitutional rights in Article 37 (2) of the Constitution. First of all, the two laws and regulations secure formal justification for limiting constitutional rights, but efforts to increase the clarity of the laws and regulations are necessary. The work commencement order under the Medical Service Act secures the legitimacy of the purpose and the suitability of the means. In addition, considering the limitations of the state's health obligation and Freedom of Occupation, it is constitutional because it also secures the balance between the minimum infringement and legal interests. However, the government's order to ban the acceptance of resignations overly restricts freedom of resignation, so it is necessary to examine whether the substance of resignation is justified. An order to commence business under the Cargo Trucking Transport Business Act may recognize the legitimacy of the purpose and the appropriateness of the means. However, in terms of the minimum infringement and the balance of legal interests, it was judged to be highly unconstitutional because it was difficult to say that the public interest of the national economy was greater than the basic rights of truckers, whose public interest was limited. Since Korea has ratified the ILO’s Forced Labour Covention 1930, it is also an issue whether the work commencement order is an exception to the prohibition of compulsory work. In this article, we examined the case of the Constitutional Court's interpretation of the ILO Convention ratified in Korea in the unconstitutional examination and the views taken by the ILO's Freedom of Association Committee on the work commencement order were examined. Overall, the work commencement order for medical personnel falls under the exception of the prohibition of forced work, and it is judged that the work commencement order for cargo owners does not fall under the exception of the prohibition of forced work.