준법투쟁의 정당성에 관한 연구

A trade union may take an industrial action as means to have a strong position at the bargaining table, and an industrial action which is taken in a legitimate manner shall exempt the union from any civil or criminal liability. Industrial action engaged in by employees can include typical methods such as strikes, picketing, slowdown and work-to-rule. No employer shall claim damages against a trade union or workers in cases where he/she has suffered damages because of industrial action under the Trade Union and Labor Relations Adjustment Act (TULRAA). But there is no definition of “justifiability” in the TULRAA except the proviso of Article 37 (1) which says that no industrial action, in its purposes, and processes, shall violate legislations and public order. In particular, there is some controversy whether a work-to-rule is an industrial action, and whether it is justifiable or not. Work-to-rule can be often utilized by the workers of public services as railroads and city railroads, because special care is stipulated on method of resolution and procedures of industrial actions in public services, which, unlike those in ordinary businesses, are likely to have an adverse impact on the national economy and people’s daily living. The Constitution guarantees workers’ three labor rights as follows. Article 33(1) of the Constitution stipulates that “to enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Fundamental labor rights of the Constitution should be shaped into the promotive institution through labor legislation. Trade Union and Labor Relations Adjustment Act (TULRAA) is to improve the working conditions and to improve the economic and social status of workers by securing the workers' rights of collective action pursuant to the Constitution. TULRAA is subordinate to the Constitution, and then TULRAA’s lawmaker should enact the provisions about the labor relations and the court should execute the law comply with the guiding philosophy on the Constitution. However the Supreme Court usually look into the objective and the manner of a work-to-rule by strict interpretations owing to the legal forms such as passive statutory immunities. Although the industrial action of public service as railroads is likely to jeopardize people’s everyday life, the industrial action of workers’ should be recognized in a wider level based on the fundamental labor rights of the Constitution. In fact, the civil suits for damages caused by industrial action for large amount are maliciously used as means to fundamentally block the basic right of workers.