집단적 노동법 70년 회고와 과제 ― 단체교섭과 쟁의행위를 중심으로 ―

With the promulgation of the Constitution of the Republic of Korea on July 17, 1948, a new turning point was established in the history of Korea's labor movement and labor law. In other words, the right to organize, bargain collectively, and take collective action were guaranteed by Article 18 of the Constitution. The first labor legislation based on the Constitution was enacted five years after the Constitution was enacted. After the military coup on May 16, 1961, the military government recognized the importance of labor policy and tried to seriously address labor issues along with the development of a long-term economic plan. On December 27, 1972, the Yushin(Revitalization) Constitution was promulgated. Accordingly, the contents of Article 29 of the Constitution, which guarantees basic labor rights, were also revised to ensure that the right to organize, collective bargaining, and collective action are guaranteed within the scope prescribed by law, and to public officials, the state, local governments, state-run enterprises, public enterprises, or the national economy. The right to collective action of workers in businesses with significant influence can now be restricted or not recognized in accordance with the provisions of the law. The Constitution of the Fifth Republic, revised by national referendum on October 22, 1980, specified basic labor rights in Articles 30 and 31 of the Constitution. Article 33 of the newly revised Constitution (October 29, 1987) stipulates the three labor rights. Article 33 guarantees labor's three primary rights without reservation in law. However, with regard to the right to collective action, the scope of the restrictions has been greatly relaxed so that it can be restricted or not recognized for workers working in major defense industries as stipulated by law. In line with the purpose of guaranteeing the labor's three primary rights in accordance with the change of government in 2022, the exercise of legal rights to maintain and improve working conditions will be thoroughly guaranteed, but in cases of abuse or misuse of these rights, the rule of law will ensure that privileges and preferential treatment do not occur. By doing so, the government's strong commitment to the so-called rule of law between labor and management was presented so that fair and reasonable labor-management relations could develop. Through this, the labor union will also increase accounting transparency, strengthen its internal responsibility to its members, and prevent illegal and unfair collusion with employers in relation to hiring and finances to prevent the rights of non-union members and members of other labor unions from being unfairly infringed. The role of law was strengthened. Future policy tasks for collective bargaining are to stabilize labor-management relations by not legislating the validity period of the collective agreement so that it is left to labor and management to reduce negotiation costs and prevent unnecessary disputes from occurring, or by specifying a longer period than the current period even if it is legalized. It is judged to be reasonable to do so. Under the principle of private autonomy, it may be desirable to leave the subject of collective bargaining to the autonomy of labor and management, but whether or not the subject of collective bargaining is subject to collective bargaining has become a subject of great dispute during the collective bargaining process between labor and management, and the judgment of unfair labor practices and the legitimacy of industrial action due to refusal of collective bargaining Since it is also a problem in judgment, etc., there is a need to regulate the subject of negotiation with some standards in the law. As a policy task to ensure labor-management balance in industrial action, there is a need to introduce procedures such as postal voting and voting notification to ensure fairness and strictness in the procedure for initiating industrial action, and the approval rate for strike should be more than 2/3 or 3/4. There is a need to find ways to increase it. From the perspective of arms equality, if workers' right to strike is guaranteed, the employer's right to hire replacement workers must also be guaranteed. At this time, like the current law, it should not be limited to the use of substitute workers within the workplace, nor should it take the form of prohibiting subcontracting. Introducing a principled ban on workplace occupation is also desirable from the perspective of labor-management balance theory.