부당노동행위와 형법 -불이익취급의 ‘이유로’에 관한 해석을 중심으로-

Subparagraphs 1, 5 of Article 81 of the Labor Union Act provide that employers shall not conduct unfair treatment ‘on grounds that’ employee has joined or intents to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for the operation of a labor union. And any employer who violates any elements prescribed above, shall be punished by a fine of not more than 20 million won or by imprisonment for not more than 2 years. In the field of labor law, the element of ‘on grounds that’ is interpreted in terms of the causality between justifiable union activities of employees(ⓐ) and unfavorable treatment of employers(ⓑ). On that basis, there are two conflicting opinions with regard to the causality. While one regards the causality as the objective connection between ⓐ and ⓑ - the objective causality, the other considers it as the intent of unfair labor practice - the subjective causality. The confrontation of these opinions closely relates to the burden of proof on the remedy procedures for unfair labor practice, because the Supreme Court ruled that employee had the burden of proof regarding unfair treatment. This controversy is practical but controversial in terms of the theory of criminal law. Because Subparagraphs 1, 5 of Article 81 of the Labor Union Act prescribe dismissal or unfavorable treatment conducted by employers. So the element of ‘on grounds that’ should be counted as the objective element of crime. That is, the role of the element is to inquire whether the treatment was fair or unfair. And the intent of unfair labor practice should be interpreted as the subjective element of crime.