단체협약법의 이론적 기초에 관한 연구

1. The right of organization is acquired from a inevitable compromise to normally function capitalism. If so, the principle of organization should be appreciated as amendatory principle in capitalism. Because the right of organization has a sense as amendatory principle of capitalism, its positive sense implies the positive ideology which brings up legal normative nature of the collective agreements between employees and employers(After I will abbreviate the collective agreements between employees and employers to 'the CA'). In other words, legal normative nature of the CA is authorized by Constitutional will on the basis of the principle of organization. Then, Art. 33 Trade Union and Labor Relations Adjustment Act(abbreviated to the TU-Act) is not established to improve work conditions by a national policy but confirmed by Constitutional will. That is to say, Art. 33 TU-Act is not an established provision but a confirmative provision. 2. In understanding the CA to be legal norm by 'Constitutional legitimacy theory', normative effect works on not only working conditions and treatments of employees(parts of working condition) but also the status of trade union and rights and obligations of trade union(parts of labor and industry relations). Only, normative effect of the CA works on two parts differently. One of working condition works like Labor Standards Act to be imperative provisions of working conditions and the other of labor and industry relations has an effect to make labor and industry relations. Therefore, parts of labor and industry relations should not be violated and if anyone violated them, he or she would be taken a sanctions by labor relation law and the positive law involved. And because both parts of working condition and parts of labor and industry relations are legal norm, it is not proper to regard Art. 33 TU-Act as normative effect. It is all the more proper that the effect of the parts for labor condition should be interpreted as labor standard effect instead of normative effect. Therefore, I propose that Art. 33 TU-Act should be regarded as labor standard effect or standard effect. 3. When Art. 33 TU-Act is regarded as a 'confirmative provision' in accordance with 'Constitutional legitimacy theory', an entity under the Constitution(so-called the 'outsider union') has the capacity, as a holder of Constitutional right of organization, to make and execute the CA.