불법쟁의행위와 조합원 연대배상책임의 제한

If an illegal strike is per se tort, the Union, its management, and the employees share joint and several liability for all damages considered to be reasonably caused by the illegal strike. In reality, the employer seeks reparation for damages and files for injunction against union members who have actively participated in the illegal strike only to withdraw said suit and injunction when an agreement is reached in regards to wages or collective agreement on the pretext of goodwill between labor and management. Such practice can be construed as a means for management to abuse in appeasing the union and its members to follow the line. This is especially true in the case of injunction, as an injunction may be ordered on the grounds of the employer's account alone and the effect stands as long as until the original suit is decided by the court, which is severely detrimental to the livelihood of the union member and their families and activities sought by the union. Under the current law, the only protection for employees is the limitation set by the Civil Enforcement Act, whereby the enforcement of reparation for damages is limited to 1/2 of wages or pension of an employee, while otherwise there are no other constraints to curve the legal pursuits by the employer. In Korea, the court dictates that in the case of joint tort, any of the one person is responsible for the full amount of damages in liability. However, if one does not distinguish and take into account the role that a member had partaken in the strike or the degree of the action and involvement, it enables the employer to selectively file suit and injunction against any member who would become vulnerable to the court's decision in assigning compensation for all damages to that person by the strict application of the joint and several liability doctrine, which is a serious impediment to the actual protection of labor rights protected by the Constitution as it limits the extent to which a person or union can exercise its right of collective action. Therefore, the need to alleviate the joint liability doctrine and restrict the extent of personal liability for employees is strongly called for and in need of discussion.