노동법에 있어 경영권의 비판적 고찰

There is no management right in the 1987 Korean Constitution. Instead, the Constitution provides that all citizens shall have the right to work and to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action. The Korean Supreme Court in 2002 decided that the decision of implementing corporate restructuring, including layoff or business merger, falls within the scope of high-level management decision may not be a subject of collective bargaining, as a general rule and a labor union's strike essentially to oppose the implementation of such corporate restructuring is not justifiable even if the corporate restructuring inevitably entails changes in the status of workers or their working conditions. This decision is to protect management right and to restrict labor right based on the constitution. This article focuses on the Supreme Court’s judicial precedents on management right. In the Supreme Court decisions, employer’s decisions on management in workplace is referred to as non-negotiables with labor union. The main purpose of this article is to criticize management right based on the property rights in the constitution. Management right like paternal power or sovereign power is in fact the power to control employees acquired through the employment contract . Employer’s right to manage a business from the property rights is converted to the power to subordinate employees through contract. This article concludes that management rights can’t be constitutional rights nor sacred and inviolable prerogatives. Management rights to control employee is a de facto ‘potestas’ which is a Latin word meaning power. It should be controlled by the law and labor right.