헌법상 강제노동금지원칙에 대한 검토

The first paragraph of the Article 12 Provision 1 of the Constitution guarantees personal liberty by prescribing “All citizens shall enjoy personal liberty.” and the second paragraph strictly prohibits force labor by stipulating “No person shall be arrested, detained, searched, or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions or subject to involuntary labor expect as provided by Act and through lawful procedures.” Nonetheless, Korea has yet been able to ratify the ILO Convention on the Prohibition of Forced Labor. Under such circumstance, it should be studied on what domestic legal systems in labor law and Constitutional law have made decision-makers reluctant to ratify the ILO Convention on the Prohibition of Forced Labor and how these legal systems should be evaluated in light of the Constitutional prohibition of force labor under the Article 12 and other Constitutional provisions related with liberty of labor. For this study, meaning of the “forced labor by provided Act and through lawful procedures” in the latter part of the second paragraph of the Article 12 Provision 1 of the Constitution should be clarified first. This study aims to reveal significance of the regulation on forced labor under the second paragraph of the Article 1 Provision 1 of the Constitution, at the same time, find the sources of the Constitutional protection for the prohibition of forced labor and reveal the significant of the protection. The outcome of the study is as follows. First, it is reasonable to understand the “labor” under the second paragraph of the Article 12 Provision 1 of the Constitution means “providing labor power” or “labor activities”. However, widely interpreting “labor” as “physical activities” is considerably beyond the scope of “labor”. Second, forced labor should be understood in the context of the wording that contents and conditions of the labor obligation newly provided by the amended Constitution in 1962 shall be determined according to laws and principle of democracy. Third, the force labor should be understood as at least “force labor exerted by direct physical power on the body.” Also, in case of imprisonment imposed as punishment for the violation of obligation of provision of labor by law, such way of forcing labor should be understood as force labor. Fourth, in understanding the forced labor under the second paragraph of the Article 12 Provision 1 of the Constitution, obligation of military service is also included.