독일법상 “직장 내 괴롭힘(Mobbing): 적대행위(Bullying)”에 관한 연구

Rudeness against, harassment of, and hostilities toward individual employees have undoubtedly existed at all times and are, therefore, not new phenomena in the workplace. However, over the last ten to fifteen years, sociologists, psychologists, physicians, and legal scholars have increasingly focused on such behaviors. In Germany, workplace bullying is known as "mobbing," a term derived from the English verb "to mob" or "to attack."Despite the increased public interest in workplace harassment, demonstrated by this survey, unlike French law, German law has no special rules dealing with mobbing. This article describes how German law deals with the problems arising from mobbing in the workplace. The article seeks to ascertain whether the general provisions of the German Civil Code (Burgerliches Gesetzbuch) are sufficient to tackle these problems or if additional statutory protections should be enacted. After defining the term "mobbing" in (Section Ⅰ), I will demonstrate which preconditions must be fulfilled in order to establish a claim for mobbing (Section II). While in Section III the legal consequences of mobbing (concerning the substantive *155 law) will be described in detail, in Section IV, I will establish procedural problems arising from the enforcement of mobbing claims. Section V will summarize the main results. In the following text, the terms "mobbing," "workplace bullying," and "harassment" will be used synonymously," all refer to the behavior described in Section II. For reasons of clarity, only the masculine grammatical forms will be used. Questions regarding the criminal law aspects of mobbing will not be addressed in this paper. Against the employer the victim may have contractual as well tort claims whereas a supervisor or coworker can be exposed only to tortious claims. The victim has a contractual damage claim against the employer only if either (ⅰ) the employer was the harasser (bossing), or (ⅱ) the offender's behavior can be attributed to the employer that is the case only with harassing acts of supervisors that affect the victim's employment status, or (ⅲ) the employer violates his duty to (actively) protect the employee against the behavior of supervisors, coworkers, and third persons on which he exercises influence, section 241 para.(2) of the German Civil Code. Tortious claims against the employer may be asserted if either (ⅰ) the employer was the offender,(ⅱ) he violated his duty to (actively) protect the employee, or (ⅲ) the offender acted the employer's vicarious agent. The victim entitled to material damages and, if he or she suffered sexual harassment or if the victim's health was harmed, to damages for pain and suffering. If the employer is tortuously liable the victim is entitled to damages for pain and suffering as in the case where the victim's right of personality was harmed. A tortious liability of a supervisor or coworker is possible only if the victim's life, health, property, or right of personality was harmed. The same types of damages (material and damages for pain and suffering) are available; however, the victim has claims against a harssing supervisor or coworker if he lost his job as a result of the workplace bullying. As demonstrated in this paper, the general civil and employment law provides a bundle of different rights and possibilities for mobbing victims. Although the most important remedies are damages (material as well as for pain and suffering), the other options (e.g.,injunctive relief, the right of retention, and the possibility of filing a complaint to the employer or to the works council)may also help the victim. Against this background it seems unnecessary to pass a law changing the substantive law in force and creating a special statutory law dealing with workplace bullying, as it is hard to imagine what other remedies such a law could provide. It is hoped that, due to the interest society, physicians, and psychologists take in workplace bullying, employers, supervisors, and coworkers not only pay more attention to such events and care about the serious consequences that may arise of them, but are above all willing to fight actively against harassment of which they become aware. In the end the "battle against workplace bullying" will have to be fought (and won) mainly at the workplace itself and not in court rooms.