헌법재판 30년과 노동권 보장

In the 70 years of Constitutional history, the Constitutional adjudication system by the Constitutional Court can be considered as one of the main reasons that have elevated fundamental rights up to the current level. Since the Constitutional Court was introduced in 1987, the decisions made by the Constitutional Court in the last 30 years clearly show that the Constitutional Court has contributed significantly to the promotion of freedom and rights guaranteed by the Constitution and improvement of people’s awareness on human rights. Despite this positive evaluation, it cannot be denied that there has not been much achievement in three labor rights and right to work compared with other fundamental rights. As such, this study starts based on the following critical views in mind. First, it is required to select decisions among ones with regard to three labor rights and right to work made by the Constitutional Court that have made meaningful process from the perspective of labor law and evaluate them. Second, considering it is 30th anniversary of the introduction of the Constitutional Court, it is necessary to review the limitations of the Constitutional Court from a critical perspective by focusing on not only decisions that made “change” or maintained “status quo”, but also ones that are evaluated as “retrogressive”. This study aims to review decisions of Constitutional Court that have significantly affected labor laws and labor law jurisprudence with critical views as mentioned above, look into their meanings, and suggest ways forward. Accordingly, first this study reviews the Constitutional Court’s understanding on the nature of labor rights by dividing in into three labor rights and right to work and identify its significance. Next, it reviews how the Constitutional Court understands the contents of three labor rights and right to work and look at its achievements and limitations. Then, it examines how the Constitutional Court reviews infringements upon three labor rights. Lastly, it concludes by suggesting ways forward of the Constitutional Court. Even though there has been much criticism from labor and other communities that the Constitutional Court is too passive and negative on three labor rights and right to work, it cannot be considered merely as the outcome of partisanship. However, the Constitutional Court cannot be free from the criticism that it has diminished the very meaning of its existence by taking too passive attitude on highly sensitive political issues. When the Constitutional Court starts over with its new members cut off from the past regime, it is the time to introspect its limitations and have great ambitions to move forward for another 30 years for better.* Research Fellow, National Assembly Futures Institute