노동3권 소고

Abstract

This thesis aims at placing rightly three fundamental rights of workers to independent association, collective bargaining and collective action against administerial and judicial misconception of them as imperfect or second-grade rights. For this, I made some demonstrations and proposals as follows: First, I have demonstrated as a matter claiming prior settlement that Korean word ‘nodong’ rather than ‘geunro’ is more accurate terminology which corresponds to the English word ‘work’ or ‘labor’. Second, I made it clear that social rights are misplaced in Korean Constitution and fundamental human rights in the constitutions should be rearranged in the order of comprehensive rights, freedoms, social rights, political participation rights and the rights of claim. Third, I have shown that the military regime of Park, Jung-Hee intended to make the social rights incompetent through the 5th constitutional revision. Fourth, despite the regime’s intent, social rights, especially three labor rights should be given a positive significance as ‘freedoms plus’. Fifth, I proposed that the right to make a union demand providing a union with a legal status, the right to collective bargaining impose a legal duties on the employer to respond with sincerity to the workers’ demand of bargaining, and the right to collective action require the prohibition of legal or factual measures to make the strike substantially ineffective. In particular, I emphasized the right to strike should be treated as one of the core components of a labor contract. Sixth and finally, I proposed to introduce the labor court system in order to overcome the distorted and unfair practice of labor administration and labor adjudication against the fundamental rights of workers. In short, I emphasized the importance of universal protection of workers’ rights and warned the risk when leaving the fate of the rights to those courts overinfluenced with the logic of the civil law.