수권규정에 관한 법해석과 법외노조 통보제도의 적법성 - 대법원 2020. 9. 3. 선고 2016두32992 전원합의체 판결 -

In September 2020, the Korean Supreme Court issued an en banc decision that revoked the disposition notifying non-legalization of the Korean Teachers and Education workers Union. The majority opinion of the case indicated that because of the lack of legislative delegation to notify non-legalization of trade union, Article 9(2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is null and void. Not giving any further interpretation of the rule which defines substantial requirements of ‘legal’ trade union, the major opinion is criticized by two concurring opinions and the dissenting opinion that it put aside the essential issue of the problem by focusing on the minor issue, such as the legal basis of delegation. However, the interpretation of delegation rules is one of the most important issue in administrative law. It leads to significant questions about parliamentary reservation, separation of powers, judicial deference toward agency decisions, and the desirable regime of control over administrative power. As a member of trias politica, administrative agencies are not only regulatees of administrative law, but also initial interpreters of the rules. The courts might give some deference to agency interpretation of ‘requirement rules’, which frequently contains technical consideration and expert knowledge. However, in case of delegation rules, the courts should thoroughly examine whether administrative agencies enlarge their authority by arbitrary interpretation, putting the people’s fundamental rights in danger. Moreover, the courts should give deference to the National Assembly, which can hold public discussion about conflicting interests and fundamental matters with regard to people’s rights. As the authority for institutional formation is reserved to the legislature, the courts should be careful not to trespass the boundary of legislative power. In this case, each concurring opinions and the dissenting opinion has adapted judicial precedent of ‘implied delegation’ and ‘agency’s authority of revocation’ in order to supplement legal delegation of the disposition. However, none of these doctrines seems sufficient to complement the statutory grounds of the disposition or the enforcement decree. Rather, in consideration of parliamentary reservation, a trade union’s rights of association which the Constitution typically protects from the administrative control, and the legislator’ intent which can be inferred from the legislative history of the Trade Union Act, the administrative agency should not be permitted to do such a formative disposition like notification of non-legalization of a trade union without any statutory grounds, nor should the courts complement delegation that does not exist in the law by interpretation. On this account, the major opinion is particularly meaningful in that it urges the National Assembly and the government to form a new desirable regulation for a registered trade union by public discussion and adjustment of conflicting social interests.