전교조 법외노조 통보에 대한 소고: 해석 및 적용에 집중하여

Abstract

This thesis is about “extrajudicial union” notification of Ministry of Employment and Labor to the Korean Teachers and Education Worker’s Union(KTU). It is often regarded as Educational ideology problem with verification of Korean History textbook of Kyohak Publisher prior to the legal question. Because the problems in bylaws of the Korean Teachers and Education Worker’s Union have existed since it was established. Related to this case, the biggest and continuous issue is that the Act on Teachers’ Union(ATU hererinafter) was legislated differently from the social agreement at that time. But, in this thesis, legislative theory is not included but it is more focused on its interpretation and application. The beginning of argument started with the point that KTU’S bylaws addenda Article 5 is against or not to the Article 2. KTU Article 2 is actually similar to the Article 2 (4) d. Trade Union and Labor Relations Adjustment Act Article 5 is accepted KTU’s specialized legal points, the interpretation of Trade Union And Labor Relations Adjustment Act cannot be accepted as itself. And if when it is supposed that the company-level labor union through KTU is not accepted, only current teachers can be the target member through the second proviso of KTU Article 2. However, “extrajudicial union” notification of The Ministry of Employment and Labor can not be justified for that reason. The ‘extrajudicial union’ notification is null and void. Because Article 9 (2) of the enforcement decree for the Union Act prescribing the notification can find no lawful ground of delegation in the Act itself and thus unconstitutional. Even if the decree could be considered constitutional “extrajudicial union” notification about KTU remains illegal. The subjects of demand correction in Article 9 (2) of the decree are the points that occurred after a trade union has been delivered a certificate of report of establishment. However, in this case, Article 5 of KTU’s addenda was existed before a trade union has been delivered a certificate of report of establishment. Moreover, “extrajudicial union” notification due to the displaced 9 workers in 60,000 members of worker’s union is against to the principle of the prohibition of excessive restriction. The workers’ initiative cannot be weakened or in danger because of the 9 displaced workers.