근로권의 헌법합치적 해석에 관한 연구 －독일에서의 단결권과 단체교섭권 해석문제를 중심으로－

Abstract

German “labor law” is the rules which are applicable to the employment relationship and which structure the collective relationship between capital and labour. German individual labor law is focused on the individual employment relationship, on the other hand collective law is focused on the structures of industrial relationship. The expression “Freedom of Association” in german fundamental law(Grundgesetz) refers to the right of employees and employers to organize themselves in order to safeguard their occupational interest. In germany “Freedom of Association” is understood not only the “right to set up association”, but also comprises a whole range of rights without which the right to organize would lose much of its meaning. “Freedom of Association” means two different rights, so called “positive Freedom of Association” and “negative Freedom of Association”. The “positive Freedom of Association” is the right to join an association, to remain in an association an to be active in an association, whereas the “negative Freedom of Association” means the freedom not to join an association or to leave an association. For the more the German Constitution not only protects the individual’s freedom of association but also guarantees collective industrial organization that have been set up to guard and promote the employment and economic conditions of their members. In german legal system there is no such article, that restrain the individual right to organize or participate to trade union. However german trade unions are mainly organized on an industry or a branch basis and therefore a union is open to all employees in the industry concerned, no matter which trade or occupation they are engaged in. This again implies that there is practically only one union for all employees of the branch or industry. But according to the general theory of fundamental right, in the future the right to association can be restricted if necessary.