쟁의행위 정당성론의 논리구조에 관한 비판과 민사면책법리의 재정립에 관한 연구

Abstract

This study focuses on showing problems of normal approach which the dominant jurisprudence and theory in Korea have taken in dealing with legal relations between industrial action and civil responsibility. The right to strike or freedom of strike could be easily restricted by strict interpretations of the court owing to the legal forms such as passive statutory immunities, not based on the rights. There always remain problems in the legal structure or legal reasoning that strikes and other forms of industrial actions are illegal in principle, subject to tortuous liabilities at civil law, but could be justified exceptionally under special conditions. It is obvious that a rights-based approach is helpful to overcome the problems with an immunity-based approach. The immunity from civil responsibility only implies historical development of the freedom to strike. It doesn't seem compatible with modern labour law. The language of immunity necessarily invites a restrictive and strict interpretation of its terms. A positive rights-based approach is thus required instead of a passive immunity-based approach to protect and realize the right to collective actions of the Constitution. All forms of strikes are legal in principle. A right to industrial action originally has a character as a liberty from the state and employer, and its essence consists in the workers' concerted stoppage of labours. The concerted stoppage of labours itself, the sole weapon that the workers have, should not be therefore liable to the employer in tort or any other ground. The exercise of a right to industrial action, like other rights, could be restricted if appropriate, within defined limit and only by the legislation. But the exercise of a right to strike and to engage in other industrial actions should not be regarded basically as illegal actions in breach of employment contracts nor subject to tortuous liabilities. Individual workers who take part in strikes or other industrial actions and the trade unions or union officials who organize those should not be liable to the employer in tort.