최근 노동법 및 노동제도 변화와 헌법사실의 관계

Two basic issues are presented by the question of how constitutional facts are to be proven. The first concerns what sort of proof is allowable, or, to use an evidentiary term, "admissible," to demonstrate that the fact is so or is not so. However terminology from evidence doctrine is misleading, since so much proof of constitutional facts comes to the knowledge of courts outside of the trial process in which rules of evidence preside. The second basic issue involves what decision-rules courts should use to resolve conflicting evidence. Again decision-rules, such as burdens of production and standards of proof, are readily found in ordinary trial procedure, but the highly varied ways in which constitutional facts are employed by courts makes the analogy inexact. Constitutional facts present novel challenges to the traditional procedural framework because they sometimes fit it, sometimes do not, and sometimes fit it and do not fit it at the same time. In many cases, the same constitutional fact will be the subject of proof admitted at trial and proof introduced in amicus brief. Although allocating burdens of proof is inherent to all fact-finding, the Court has viewed facts categorically in its constitutional analysis, as either true or not true, a perspective wholly at odds with modern views of empiricism. The changes of labor legislature gave some essential implications of constitutional facts in recent. First, as those legislative ends of the limits of labor union's official compensation by employer will guarantee the independence and autonomy of labor unions, the uncertainty of their financial base has inherently constitutional problems that breach the collective right to assembly between employer and labor. Second, as the enacting of multiple labor union leads to formate a favorite condition for employer to make decision of collective bargaining between labor and employer, it takes undesirable effects on the right of collective assembly of labor union. Third, legal enforcement against the discrimination of temporary labor has shifted from irregular labor to regular labor or increased the indirect employees. These legislative facts of temporary labor can make use of party's evidence data as constitutional facts in the judicial process. Forth, Supreme Court ruled consistently that the disputing actions are charged with a crime of obstructing business unless it is exempt from illegality, on the ground that workers’ collective refusal to work hampering the normal operation of business, thereby it was turned out labor legislative facts can be applied to constitutional fact of collective relationship between workers and employers in judicial procedure. In consequence, whether legislative facts can be interpreted as constitutional doctrinal or viewable facts not by judge, Court has replaced a constitutional provision on three labor basic rights of interpretation of labor law. Therefore labor lines and business circle have never been carried out cooperative and productive relationship between workers and employers, and the rate of union formation has been decreased so far. A zero-sum labor disputing litigations in favor of employer has to improve the judicial procedure and evidence rule on basis of constitutional facts.