단체교섭권의 보호범위와 단체교섭응낙가처분의 인정근거에 대한 재검토

It is improper to draw employer's duty on collective bargain in the perspective of civil liberties. Right to collective bargain as fundamental rights, in principle, is a subjective public right, which prevents employer’s violation. This is based only on recognizing the fundamental rights' effect on the private people. So, the frame of the Law of Obligations, regarding right to collective bargain as relations between rights and duties, is unsuitable to the discussion on fundamental rights. Regardless, Korean courts are assuming right to collective bargain as a right to claim and acknowledging employer’s duty of compliance with collective bargaining. The courts’ stance, however, is inappropriate because among institutional measures against unfair labor practices linked to to the Constitution. Accordingly, it is enough for the courts only to confirm legal status of employers. The courts should not allow provisional disposition of a forced compliance with collective bargaining. The way of resolving the issues based on each party’s free decision on adjustment is a right understanding on collective self-governing of Article 33 in the Constitution of Korea.