노조법 제41조 제2항에 대한 검토 ― 위헌가능성을 중심으로 ―

As Korea is divided nation, national security is so important that it is referred as a reason for the restriction of fundamental rights in Paragraph (2) of Article 37 of the Constitution. Even in the case of restriction of right of collective action for the reason of national security, however, we need to examine thoroughly whether the purpose is as sufficiently valid as to prohibit right of collective action, whether the law take appropriate steps to achieve the purpose, whether the steps restrict employees’ fundamental rights just as much as necessary, and whether the benefit of the law gained by the violation of fundamental rights and the violation of fundamental rights are well balanced. This paper examines prohibition of industrial action of workers engaged in a major business of national defense industry provided in paragraph (2), Article 41 of the Trade Union and Labor Relations Act(Trade Union Act), verifying basic fact, examining the logic of guaranteeing or prohibition of right of strike under Convention No. 87 of ILO, reviewing examples of foreign countries to examine paragraph (2), Article 41 of the Trade Union Act in chapter II, decides that a certain rupture is developed in the purpose of the paragraph in question, that paragraph (2), Article 41 of the Trade Union Act is not appopriate as a means to realize paragraph (3), Article 33 of the Constitution, the general prohibition of right to industrial actions under paragraph (2), Article 41 of the Trade Union Act is not compatible with the principle of minimal restriction of fundamental rights, and therefore benefit of the law gained by the violation of fundamental rights and the violation of fundamental rights are not well balanced, and concludes paragraph (2), Article 41 of the Trade Union Act is not compatible with the purpose of provision of paragraph (3), Article 33 of the Constitution so may be unconstitutional.