쟁의행위와 불법행위책임: 직장점거를 중심으로

Claims for damages against workers and labor unions in relation to the exercise of the right to strike are a serious threat to the principle of autonomy of the basic labor rights. Since the exercise of the right to industrial action inevitably limits the economic freedom of the employer, the employer cannot claim in the name of property rights or economic freedom for the essential and inherent damage caused by the exercise of the right to industrial action. The logic of the precedent that judges the legitimacy of industrial action as a whole and directly links it to tort liability is against the spirit of the Constitution that recognizes individual workers' right to strike, so it should be converted to the legal principle of abuse of rights. In addition, it is necessary to distinguish between damages caused by the exercise of the right to strike and damages caused by illegal acts beyond this. Occupation of the workplace is one of the tactics of industrial action accompanying a strike, so even if it is accompanied by illegal acts that exceed the scope of justification, such as the use of violence, it does not make the strike or other legal means of industrial action illegal at the same time. The action causing the damage is an illegal occupation, and the liability for compensation should be limited to the damage directly caused by the action. Selective litigation for illegal or unfair purposes such as obstruction of worker’s legitimate exercise of rights or unfair labor practices should not be regarded as a legitimate exercise of right.