부당노동행위의 형사책임 주체로서 사업주의 의미 - 제3자의 지배⋅개입 행위를 중심으로 -

Paragraphs 4 of Article of the Labor Union Act(hereafter ‘the Act’) provide that employer shall not conduct domination or interference in the organization of operation of a labor union by employees. 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 ‘employer’ is interpreted in terms of the economic ascendancy. The Supreme Court allowed this opinion for determination of employer status in an Hyundai Heavy Industries Co. Ltd. case: In case where a person supervises and manages the employees substantially regarding basic working conditions, just like their real employer having authority for the employees he/she has hired, if such person dominations or intervenes in the labor union’s organization or operations in a way that falls under Paragraphs 4 of 81 the Act, that person should be an employer who must follow an order for correction of that action, and shall be considered to have an equivalent position to an employer. But whether a person is considered an employer under the Paragraph 4 of Article 81 of the Act shall be determined by whether, in actual practice, the person is under contract of employment to the employees. In understanding this concept, contract of employment is put at the center, while the key point to be considered is whether a employment exists between the employer and the employees. Because the Article 90 of the Act provides that the criminal responsibility of employer. So the third party who supervises and manages the employees substantially regarding basic working conditions is not an employer of domination or interference as an unfair labor practice.