직장괴롭힘의 합리적 규율에 관한 연구

Abstract

According to the definition of workplace harassment under Article 76-2 of the Labor Standards Act, the very vague concept of ‘supremacy’, ‘pain’, and ‘deteriorating working environment’ as well as the key wording of ‘the appropriate range for work’ is used. Therefore, it is quite difficult to be foreseeable to what workplace harassment really is and in which cases it is recognized as workplace harassment. It is inevitable to use an indeterminate concept to define the legal text as it has to cover a wide variety of issues. Nevertheless, if the judgment factors that can concretely interpret an indeterminate concept in question are stipulated together, this will inevitably lead to unforeseeability of the relevant legal norm, and as a result, it is highly likely to lead to considerable confusion for persons subject to it. This paper develops the theory of interpretation and legislation to rationally regulate workplace harassment in the context of such a problem. In this paper, I critically accepted ‘work necessity’ and ‘appropriateness in terms of social norms’ suggested by the Ministry of Employment and Labor as the criteria for judging whether the appropriate range for work was exceeded, and then replaced the former with ‘task correlation’ and the latter with ‘social reproachability’. This paper tried to derive a workplace harassment judgment model according to the correlation of these criteria, and presented a desirable judgment model. Here, ‘social reproachability’ has its essence in that a employee who is a member of an organization can be blamed for violating the dignity of other employees, such as personal rights to be protected. employees’ personal rights refers to the maintenance of ‘body integrity’ and ‘integrity of mind’ as a unity of spirit and body in the process of work, and these personal rights mean the maintenance of an employee’s dignity as a human being in the process of work. In addition, I suggested i) the content and aspects of the behavior in question, ii) the content of duties which an actor and a victim are responsible for, as judging factors for task correlation, and i) the relationship between an actor and a victim, such as the position in the organization concerned of the actor and the victim etc., and ii) the victim’s explicit or presumptive response to the behavior in question, as judging factors for social reproachability. From a viewpoint of the average person in an organization concerned, which takes into account the standpoints of the members of society as a whole, a judge reason upon a criterion of “whether or not there is task correlation and the degree of task correlation”, and a criterion of “the degree of social reproachability” correlatively, and then determine whether workplace harassment is or not, it is the core content of the above-mentioned judgment model. Furthermore, unlike the current law that stipulates all the requirements for workplace harassment only in the main text, this article stipulates the requirement that ‘pain or deterioration of the working environment will be within the appropriate range for work’ in the proviso, so that the burden of proof is rationally distributed. An amendment to the workplace harassment definition that reflects the argument of the third paragraph above was proposed.