부당노동행위 의사의 증명책임

The burden of proof is as important issue in unfair labor practice cases as in typical legal cases. The burden of proof in unfair labor practice cases is mainly related to the intention of unfair labor practice, which is required for unfair labor practices of unfavorable treatment, but not for those of domination and intervention. According to the normative theory, the union bears the burden of proof for the intention of labor practices. However, it is difficult for the union to prove the intention of unfair labor practices since they are within the controll of the employer's internal deliberations, and to aquaire evidence. From this point of view, whether to relax the burden of proof shall be discussed. De facto presumptions can be an effective means of easing the burden of proof, as well as statistical proof and the theory of spoliation of evidence. Ultimately, legislative consideration should be given to shifting the burden of proof to the employer. By easing or shifting the burden of proof, it is necessary to ensure that the ideology of social law, which seeks substantial equality of the parties, and the purpose of the Constitution and Trade Union Act, which seek to substantially guarantee the three fundamental labor rights, are realized even through litigation procedures.