경영권의 단체교섭대상여부 ― 기본권충돌이론의 적용을 통한 해결 ―

Although the right of management is not listed on the Constitution, it is recognized as a basic right based on 'economic order' from Article 119, 'guarantee of the right of property' from Article 23, 'freedom of occupational options' from Article 15, and 'general right to freedom of action and right to free contract' from Article 10 of Constitution, and also as an Economic Right, which allows economic players to perform economic activities freely. When applying the Principles of Conflict of Basic Rights on the conflict of right of management and right of collective bargaining, the most important thing to do is to check the essential content of every management rights. This is because the essential content of basic rights can be the restriction of basic rights. Due to the nature of constitutional provisions and rights of collective bargaining, the essential content of basic rights must be examines closely in order to determine the essential content of right of management. The essential contents of collective bargaining right are the management decisions that 'directly' affect the 'working condition' of members, who existed 'at the time of decision'. The essential content of management right, which is determined based on the collective bargaining, does not affect management decisions that does not (quantitatively) change the business as a property or the working condition of the workers. On the other hand, if we examine the actual application of law in a realistic perspective, I think there is excessive controversy on subject of collective bargaining. The controversy on the problems of subject for collective bargaining can be severe due to the interpretation of the norm but as long as it doesn't infringe the essential content of management right and is relevant to the working condition, then I think it is fulfilling the legal clarity if it is accepting wide range of target for the collective bargaining and strictly controlling the procedures and means of direction action that facilitate the legitimacy judgment.