노동조합에 대한 공정거래법 적용 문제: 사업자단체와 적용 제외 규정 해석을 중심으로 -사업자단체와 적용 제외 규정 해석을 중심으로 -

Based on the history of amendments to the Fair Trade Act, it can be interpreted that even if a law is not specifically enacted to exclude the application of the Fair Trade Act, it is excluded if it is a legitimate act in accordance with other laws, and it can be seen that the Fair Trade Act recognizes “persons in special types of employment” in the past and “worker under the Industrial Accident Compensation Insurance Act” in the present as categories that may be economically dependent and recognizes them as targets for protection. Trade unions are constitutionally recognized as the subject of the three labor rights and the representatives of workers; they are organized by workers who have “the need to guarantee the three labor rights”; they are autonomous and democratic in nature from employers and the government; and they can enjoy the right to organize, the right to collective bargaining, and the right to collective action in solidarity for the purpose of improving working conditions. It is undisputed that the improvement of working conditions includes solidarity for workers to determine their wages. On the other hand, a Business operators’ association is an organization organized in accordance with the general freedom of association under the Constitution, whose members are actual business operators who are subject to the Fair Trade Act, organized with business operators as the main members, and composed of two or more business operators who have the purpose of 'promoting common interests as business operators’. As such, labor unions differ from business operators’ associations in terms of who they represent (workers vs. business operators), whether they are based on autonomy and democracy, and whether solidarity is an essential purpose. Traditionally, the “exercise of the three labor rights” has been understood as “an area that is excluded because it is not related to the competitive order per se,” without even discussing the Article 116 exclusion. Even if we follow the view that workers under the Trade Union Act can be viewed as business operators, the most important interpretive principle to consider when interpreting the exercise of the three labor right and Article 116 of the Fair Trade Act is constitutional interpretation. Any law that has provisions for the purpose of achieving substantive equality in economically unequal relationships, such as the Trade Union Act, shall be construed as an “other law” under Article 116. In light of Article 33(1) and Article 119(2) of the Constitution, the purpose of the Trade Union Act and the Fair Trade Act, the legal limits of state intervention in the economy, and the grounds for exclusion in previous case law and scholarship, such as “when it is inappropriate to apply the principle of competition”, it is reasonable to view acts falling within the scope of Article 33(1) protection as “legitimate acts under other laws”. In addition, the burden of proving that a worker's or trade union's conduct falls outside the protection of the three labor right and that the Fair Trade Act should be applied is on the KFTC.