경제민주화와 (노동)형법: 쟁의행위에 대한 위력업무방해죄 적용의 문제점과 입법론적 개선방안을 중심으로

Throughout or Since the presidential election of the late December 2012, the term “economic democratization” came to be one of the controversial or important issues in the Korean society. The fact that the term is still being discussed implies that the economic inequality of the Korean society is getting more severe. As the society grows more discontent towards the current situation of economic inequality, it seems that the demand for economic democratization reached its peak. While the regulations on the unfair business practices of conglomerates are on the agenda, I argue that it is also critical to improve the labor policies to fully protect the labor rights of the Constitution of Article 33 Clause 1. In particular, these days in Korea “firing employees is seen as economic murder”, and the labor criminal law regards industrial actions guaranteed by the constitution as business obstruction crime with the unlawful exercise of force, which translates into a problem of limiting labor rights. In this regard, in this article the concept of the “economic democratization” and the enhancement of the labor rights are to be discussed. Also the contents and limits of the 2010 constitutional court ruling and the 2011 supreme court unanimous decision on the application of the business obstruction crime are to be examined. To establish the “economic democratization” properly through these discussions, labor rights of workers, who are an economic minority, must be strengthened. To that end, a bill is presented that says the ‘force’ factor should be removed from the business obstruction crime in the long term and the business obstruction crime of the Criminal Law Article 314 should be amended to make the crime constituted by violation of legal interests in the short term.