단체교섭거부행위와 형법 제20조의 관계

Abstract

In the labor area, the Supreme Court makes a deal with whether the employer or employee is punished by the socially accepted idea. But it is far from certain what the idea means in relation to the systematic status in criminal law. Let me take a for examples. Firstly, if the rules of employment are changed badly on employee, the employer needs to have the consent of the labor union by the Art. 94 of the Labor Union Act. But the Supreme Court states that, “the employer who did no consent is not punished according to the socially accepted idea.” Secondly, although the employer fired employee without a good cause, he or she was not punished for the same reason before the amendment. But the former means that the idea excludes the element, while the latter means that the idea precludes the illegality. Then, what does a idea do in the refusal of collective bargaining case? The Supreme Court makes a judgement like the first example. That is, although the employer rejects collective bargaining, he or she does not punished with a good reason. But the problem is the good reason depends on the justification of the labor union. If the demand of the labor union is unjustified, the refusal of the employer is judged to be a good reason. On the other hand, the Supreme Court judged that, the strike action of the labor union is to be dealt with justly, it is essential that the all rules of the Labor Union Act must be followed. That means the judge makes an arbitrary decision by using the generally-accepted idea in the society. In other words, the judge uses the idea in favor of the employer. In this case, the purpose of the Labor Union Act can never be achieved. Because the judge is on the employer’s side diplomatically using the abstract concept like socially accepted idea. Therefore the Supreme Court should apply the idea consistently and equitably to employer or employee. And the scholar should found the systematic status of the idea and set the standard of judgement.