노동조합및노동관계조정법 제3조를 어떻게 이해해야 할까? ― 단체교섭 및 쟁의행위의 「이른바 민사면책」의 법리 ―

In this paper is reviewed and reconstructed on the basis of labor constitution, what normative status the Article 3 of the ACT ON THE COORDINATION OF TRADE UNIONS AND LABOR RELATIONS(below called “The Union Act”) has in our labor legal system. The Labor Law in the traditional sense, which was established in the late 19th century to the mid-20th century, was amended and supplemented on the premise of a capitalist order under the Civil Law, which was established in Western Europe in the 17th and 18th centuries by the citizens of modern heritage to embody their ideas of freedom. The key to the supplementation of the civil law order under these labor laws lies in the incorporation, guarantee and formation of the collective activities of the workers. Under the Civil Act, workers' Collective Union activities were identified as crimes and illegal acts that were against criminal and civil laws. So, the labor law thinking is still dominated by conventional civil law-oriented methods of understanding in discussing labor legislation as a national measure on workers' Collective Union activities, as demonstrated by the existing law on labor-centered development, the expression “civil exemption from responsibility for illegal acts” or “criminal exemption” from crimes that destroy traditional civil order, even in countries where such activities are explicitly guaranteed by the basic rights of workers, such as Article 33 of the Korean Constitution. But the understanding of Article 3 of the labor union law, which embodies the three labor rights in our labor constitution system, in which the highest standard, the Constitution, guarantees the three labor rights as the basic rights of workers, should be different from that of our country and other Western European countries. It is generally said that labor law is the legally amending and correcting principles of the modern civil law. The Article 3 of the Union Act, together with Article 4, best illustrates the labor law's true aspect as the principle of amending these Civil Laws. If Article 3 of the Union Act amends the basic principles of civil law, Article 4 of the Union Law is to amend the basic principles of criminal law as civil law. Thus, under the constitutional order in which labor rights are guaranteed as the basic rights of workers, Article 3 of the labor union law is so reasonable a regulation that embodies the constitutional order along with Article 4 of the same law. From a legal system perspective, it can be said that Article 3 of the Labor Law, in addition to Article 4 of the Act, serves as a breakwater or barrier for securing the independent system area of labor law from the civil law system to operate its own system principles. So far, however, we have identified Article 3 of the labor union law as simply a provision on civil exemption for so-called united activities. This way of thinking stems partly from the attempt to impose a liability exemption through the manipulation of logic in civil and criminal laws on disputes, such as illegal fragmentation or component justification, in the name of guaranteeing labor rights by defining collective action by workers in a country where the three volumes of labor were not properly guaranteed under the Constitution as acts that destroy the civil legal order. Of course, it is a valid logic in the history of the formation of three labor powers, when collective bargaining and collective action were passively recognized. But in our country, where three labor rights have been actively guaranteed as the basic rights of workers in the constitution Law, such logic manipulation is like to deny the Constitution. That is why I urge the government to re-emphasize and recognize the normative significance of Article 3 of the Union Act, which confirms that the three labor rights guaranteed by the Constitution are free from the illegal acts and defaults in civil law, as a legal effect of constitutional protection of the three labor rights.