한국의 쟁의행위와 책임

Abstract

The reasons that it is difficult to form reasonable law and order with regard to industrial action and liability are varied: numerous provisions that restrict and prohibit industrial action, established under policies which sought to control labour for a prolonged time in the past; a negative social awareness of the three fundamental labour rights and court precedents grounded on such perception; and the unique organisational structure of enterprise-based unions in Korea. If there is no extensive and close examination of the fundamental causes, then endless detention, search, dismissal, exorbitant damages and provisional seizure will continue as they do today. Before further progress can be made, it is critical to understand that there will be no law and order unless the state can escape the dark history in which labour unions were oppressed. In most countries nowadays, collective labour relations are left to be resolved by the labour and management; even when there are regulations, they mostly address issues to prevent unfair labour practice that might infringe on the workers' right to organise. Korean labour law is far from such. The current law is filled with restrictive and punitive provisions, and most of them target workers and labour unions, defying the purpose of legislation - to guarantee the three fundamental labour rights. No matter how peaceful a strike may be, those who are involved could be punished for interfering with business under the Criminal Act or be subject to a claim for damages on the grounds that the purpose, means or procedures of the industrial action are not compliant with legislative provisions. The reality in Korea is that a lawful strike is near impossible. The point here is not that workers engage in illegal strikes but that a strike itself is made and seen unlawful by definition. For this reason, it would be better to describe the current labour law as a law made convenient for the state in making organised actions illegal and preventing originally them, rather than as labour law in a genuine sense, which guarantees the workers' right to organise. The restrictive provisions of the Criminal Act and other labour related laws in turn have an absolute impact on the judges in their ruling of the legality of industrial action, especially in the lawsuits surrounding a strike and liability in damages. Above all, the most urgent challenge is to remove the various punitive provisions which exist in the Union Act that serve as the major basis on which the legality of an industrial action is determined and to ensure that the interference with business clause in the Criminal Act is not applied to an industrial action. It should be rightly emphasized that the labour law needs complete and extensive restructuring, to doubly ensure that industrial action by workers is a lawful right in application as well as in principle.