부당노동행위 처벌규정의 헌법상 과잉금지의 원칙 위배 여부

Article 81 of the Trade Union and Labor Relations Adjustment Act (hereinafter “TULRA”) stipulates regarding unfair labor practices, and Articles 82 and 86 provide remedies for unfair labor practices. Article 90 of the same act imposes penalties for violations involving unfair labor practices and has been accused of being an overcriminalization that undermines the restorative intent of the unfair labor practice system. This paper examines whether the provisions that prohibit unfair labor practices and the criminal penalties imposed for unfair labor practices are against the principle of proportionality. Judgment of the minimality of infringement should first include the identification of several measures that are equally suitable or equally effective for the realization of the legislative objectives (equal suitability), and, second, the restrictive effects of the individual measures on fundamental rights should be compared with each other to ascertain the measure with the minimal burden on the doer (minimal infringement). While judging whether the provisions for criminal punishment have met the minimality infringement, it can be seen that the provisions for the punishment of unfair labor practices do not meet the requirement for the minimality of infringement termed equal suitability because the provisions regard unfair labor practice as a target for criminal punishment without first considering preventative measures such as regulations and remedies, and because penal servitude does not meet the requirement for minimality of infringement as it restricts the related basic rights much more than other measures such as regulations and remedies. In other words, the provisions that provide punishment not only in the form of fines, but also in penal servitude are against the principle of minimality of infringement under the principle of proportionality because these provisions excessively infringe on the employers’ freedom of the body and they heteronomously force autonomous negotiations between labor and management, thereby restricting the principle of private autonomy, which is one of the general rights to freedom of action under Article 10 of the Constitution. Besides, the balance of legal interests means that the public interest to be protected and the private interest being infringed should be compared and weighed such that a reasonable balance can be maintained. That is, the balance between the purpose pursued by the unfair labor practice system and the infringement of the fundamental right of freedom should be judged. However, because there is no reasonable and binding measure for the comparison and weighing of legal interests, legal interests can only be determined by their relative importance in specific situations. The subjects requiring consideration in the balancing of principles in the area of ​​criminal legislation are the principle of responsibility and the principle of proportionality. There is criticism that the constituting requirements of Article 81 of the TULRA, which describes unfair labor practice, violates the principle of proportionality between crimes and punishments. The enforcement of penalties for unfair labor practices, which are very likely to violate the basic principles of responsibility and the principle of proportionality, and the resulting infringement of fundamental individual rights cannot be smaller in quantity and quality when compared to the public interest, namely the establishment of order in labor relations and the guarantee of the three rights of labor. That is, there can be no public interest more significant than the fundamental rights of individuals (private interests) infringed upon by a law that fails to comply with the basic principles of criminal law. Given that the purpose of the unfair labor practice system is to prohibit employer conduct that is against the three rights of labor guaranteed under the Constitution, in order to realize the same rights thereby recovering the order of labor-management relations, that is, the ultimate purpose of restoring the infringed rights or status, given that the present system violates the principle of proportionality which is the constitutional principle guiding the restriction on basic rights. Given that, finally, the Constitutional Court is increasingly passing judgments that identify the violation of the Constitution by the unfair labor practice system, Article 90 of the TULRA should be repealed.