노동기본권의 본질과 쟁의행위

• 영문명: A Nature of the Labor Fundamental Right in Strike
• 발행기관: 중앙대학교 법학연구원
• 저자명: 송강직
• 간행물 정보: 『법학논문집』法學論文集 第39輯 第1號, 223~249쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.04.01

영문 초록

I intend to offer amendment bills against some issues both in the Trade Union and Labor Relations Adjustment Act(TULRAA) and Case Law by the Supreme Court of Korea with respect to strike. So I analyze what is a lawful strike or an unlawful strike in the U.S, Japan, and South Korea each other. Conclusions are as follows: First, I suggest that a strike should be declared unlawful only if it has unlawful purposes or means. A strike, however, has been declared unlawful where a union also failed to satisfy procedural requirements under the TULRAA, that is ballot system and period of mediation etc., by the Supreme Court of Korea. Accordingly I suggest to abolish the requirements through amendment of the Law, or to change case law by the Supreme Court. Second, I suggest that management affairs, that is a mass dismissal or plant closure etc., should be included in mandatory objects of the collective bargaining. The Supreme Court interprets, however, these management affairs above as illegal objects. Third, I suggest, even though an union violated a no-strike clause, this violation has no relations to where the strike is an unlawful or a lawful if the strike is lawful both in its purposes and means. The Supreme Court of Japan takes this position. Of course the Supreme Court of Japan recognizes a civil liability by a violator against other party to agreements. The Supreme Court of Korea, however, interprets a strike that failed to keep a no-strike clause as an unlawful strike, simultaneously recognizes a civil liability by the violator against other party to the agreements. Finally, I suggest that a strike of work to rule should be excluded from a strike category. The Supreme Court of Korea, however, interprets this type strike is also included in a strike category, so an union must satisfy procedural requirements under the TULRAA to do a lawful strike.

목차

Ⅰ. 서설

Ⅱ. 헌법상 노동기본권 보장 및 실체법 규정 내용

1. 노동기본권 보장 규정 내용

2. 실체법상 노동기본권 보장의 구체화 내용

Ⅲ. 쟁의행위의 주체ㆍ목적ㆍ수단ㆍ절차 등의 정당성 판단 법리

1. 쟁의행위 주체

2. 쟁의행위 목적

3. 쟁의행위 수단ㆍ절차

Ⅳ. 결론

키워드

노동조합 쟁의행위 직장점거 쟁의권 포기 부당노동행위 labor union strike sit-down strike no-strike clause unfair labor practice