단체행동권 행사요건의 흠결과 손해배상책임 - 사용자에 대한 손해배상 범위를 중심으로 -

The right of collective action is guaranteed on the premise that the relationship between employee and employer is unequal, and to resolve the unequal relationship between them. Althought the right of collective action is guaranteed in the Constitution, it is a self-evident fact that the unequal relationship is not naturally diverted into the equal relationship. There is a contradiction and a confrontation between the principles of Civic Law based on equal relationship and the principles of Social Law based on unequal relationship. Therefore, it is necessary to reorganize, by embracing the harmonisation of values, from unequal relationship to equal relationship. If employees does not meet the requirements for exercise of the right of collective action, judicial precedents and academic theories apply directiy without modification the legal Principles of liability in the Civil Law based on equal relationship. This paper raises a question whether their interpretation is a soundly based conclusion. The right of collective action in Korea is guaranteed in the Constitution. Therefore, it is necessary to reorganize the liability for economic losses of the employer from unequal relationship to equal relationship. This paper is an attempt to reconstitute normatively the theory of the liability for damage caused by the deficiency of the requirements for exercise of the right of collective action. Finally, this paper hopefully could be a little help for a better legislation in the future, and that more empirical studies are expected in stages, accumulating legal cases and a corresponding discussion of problems in Korea, including case studies of foreign countries.