헌법개정과 노동3권 보장의 과제

Although the Constitutional Amendment process was taken place in 1987 in the midst of the Great Labor Struggle that occurred in the same year, it has yet to be studied whether the achievements of the Great Labor Struggle were reflected into the Constitutional Amendment. Nevertheless, it is undisputed that the Article 33 of the Amended Constitution in 1987 was a great step forward compared with the Article 31 of the Amended Constitution in 1980. However, the prohibition of public official and teacher’s right to collective action and prohibition of dual unionism were not repealed until substantial amounts of time had passed since then. Given that, it would be rather hesitant to give significance to the role of the Article 33 of the Amended Constitution in 1987 during the transitional period. In this sense, it can be said that the Constitutional Amendment in 1987 had its limitations in guaranteeing three basic labor rights. Under the current situation where discussions on the Constitutional Amendment have been actively made, introspecting on the limitations of the Constitutional Amendment in 1987 may give good insights into the current discussions and encourage public discussions where people, especially workers, can actively participate to deeply examine the necessity of the Constitutional Amendment of the Article 33 and its desirable directions. This study aims to review the necessity of the Constitutional Amendment of the Article 33 and to express my opinions on the desired directions of the Amendment as an extension of the review. As the general directions of the Amendment may depend on how persuasive the necessity is demonstrated, it is essential to carefully review the reasons for the Amendment. For the sake of convenience of discussion, this study focuses on the necessity of the Amendments that have been recently proposed. Also, this study is extended to the subjects such as subject of fundamental rights, description format and regulation system of three basic labor rights guarantee, expansion of public official’s three basic labor rights and right to collective action of workers employed by important defense industries. This study considers that right to Association, right to collective bargaining, and right to collective action should be prescribed in separate provisions and the guarantee of three basic labor rights and right to collective action of public official and workers employed in important defense industries should be further strengthened except that the subject of fundamental rights should be changed to “everyone.” However, it will be reasonable to explicitly stipulate only the limitations on the right to organization of soldier and police official in guaranteeing three basic labor rights of them while being silent on three basic labor rights of other public officials.