사용자의 언론의 자유와 지배ㆍ개입의 부당노동행위 ― 최근 대법원 신판결의 분석과 비교법학적 평가 ―

This article reviews a recent case of the Supreme Court (2001Do15497) in relation to freedom of expression of an employer and unfair labor practices. It is found that the Court changes criteria by which it is decided whether certain expressions of an employer in relation to activities of trade unions amounts to unfair labour practices. It is demonstrated that by its change, the criteria is similar to those of the US. In the US, expression of any views are not prohibited as an unfair labor practice unless such expression contains no threat of reprisal or force or promise of benefit under the National Labor Relations Act (NLRA) of 1935. Then this article examines whether the change is appropriate. It does so by comparing the recent case with relevant law and cases of both the US and Japan. The US criteria under the NLRA of 1935 were introduced in the Act with a view to confirming freedom of expression in the US Constitution. It should be noted that unlike the Constitution of both Japan and Korea, the US Constitution does not have any provision on labour rights. In order words, the US criteria to allow freedom of expression broadly in relation to trade unions’ activities were established due to the asymmetry of the freedom of expression and labor rights in terms of its constitutionality. Furthermore this article also shows that the Supreme Court of Japan is of the view that expression of views of an employer can be prohibited as an unfair labor practice even though such expression does not have threat of reprisal or force or promise of benefit. This different view of the Court of Japan is taken because Japan’s Constitution, unlike that the US, provides that workers are entitled to organize, to negotiate collectively and to take industrial action. Overall this article’s findings suggest that the Supreme Court’s change to the American criteria in the recent case can hardly be explained in terms of Korea’s constitutional protection of labour rights.