자유를 통한 노동 개입 — 근대 시민법과 현대적 법치에서 공통으로 나타나는 자유와 노동의 관계를 중심으로 —

Korean society is currently troubled by a legalistic abuse whereby civil damages are sought in compensation for labor disputes. This study attempts a theoretical characterization of this phenomenon by reading it in a social context. As a first step, it looks at how civil law was formed in the flow of ideas which guaranteed freedom to modern subjects, then shows how ‘civil legal liberties imposed on labor’ are bound to appear as a way of controlling the ‘right to labor.’ Today’s issue of civil damages for labor disputes can be seen as a latent conflict in the overlapping realms of civil and labor law, so this study examines why civil law takes no interest in protecting workers’ labor rights, despite the ‘guarantee of liberty’ which was first promised by the French Revolution. Ever since this era, the full enjoyment of liberty by the modern subject has been equated with ownership, which meant that those who could not exercise ownership, those without property, had their liberty legally restricted. This asymmetry justifies social intervention to preserve the “freedom” of the property-owning classes against the resistance of those lacking property, for example in actions such as strikes. This type of intervention, to constrain the liberty of the laboring classes, is typically a valid aspect of the rule of law in most liberal countries today. Thus, the use of civil law damages to defend ownership rights effectively neutralizes the labor rights provided under labor law, moving workers into the realm of civil law. In South Korea, civil damages for labor disputes were first pursued in 1989, after the democratization of the country. This marks the full emergence of the civil legal freedom to intervene in labor, transforming labor issues between workers and employers into disputes about the interests of private parties under civil law.