노동조합법 제26조·제27조의 해석과 노동조합법 시행령의 위헌성 해소방안

With the ratification of ILO Convention No. 87, which guarantees the right to freedom of association, the government imposed fines on trade unions for failing to report on the maintenance and preservation of financial books and documents as required by Article 27 of the Trade Union Act. Furthermore, the government amended the Enforcement Decree of the Trade Union Act to introduce significant changes in financial management, such as the disclosure of financial statements through an accounting disclosure system. This has raised practical and academic concerns about whether these measures violate ILO Convention No. 87 and whether it is permissible to regulate matters that restrict rights and impose obligations through administrative legislation rather than statutory law. The specific issues under discussion are as follows: First, there is an issue of interpretation regarding the scope of application of Articles 26 and 27 in applying Article 14, Paragraph 5 of the Trade Union Act. Both Article 26, concerning disclosure and publication to union members, and Article 27, concerning reporting to administrative authorities, use the same phrase “financial statements and operational status.” It is necessary to interpret whether this phrase has the same meaning in both contexts, and to determine the extent of inspection, publication, and reporting of “financial books and documents” that trade unions must maintain and preserve according to Article 14, Paragraph 5. Considering that the Constitution and the Trade Union Act guarantee the autonomy and democracy of trade unions, and that individual provisions of the law should be interpreted comprehensively and organically in light of the entire law, the interpretation could be as follows: The “inspection” in Article 26 of the Trade Union Act should be interpreted broadly, as it is meant for trade union representatives to inform members to ensure democracy. “Publication” should be more limited than inspection, as representatives may need to restrict some information from external disclosure to maintain autonomy while ensuring internal democracy. “Reporting” in Article 27 should be interpreted most narrowly, as it involves reporting only the minimum necessary information to administrative authorities to maintain union autonomy. Thus, considering the intent and purpose of the Trade Union Act, the scope of inspection, publication, and reporting of “financial statements and operational status” can be interpreted in descending order as inspection > publication > reporting. Second, there is a conflict between the Enforcement Decree of the Trade Union Act and ILO Convention No. 87. The government's verification of organizational business expenses, negotiation and dispute expenses, etc., through the Enforcement Decree cannot be considered a routine request for information. It could expose all of the union's strategies for membership activities and industrial actions to the government. This excessive administrative intervention could hinder the legitimate exercise of union rights, potentially violating not only the right to organize but also the right to collective action, which may contravene Article 3 of ILO Convention No. 87 and the decisions of the ILO Committee on Freedom of Association. Third, there is an issue of unconstitutionality in the Enforcement Decree of the Trade Union Act, which stipulates restrictions on rights and imposes obligations without legal basis in the Trade Union Act. Matters concerning the restriction of rights and imposition of obligations should be directly stipulated in the law or at least regulated based on legal delegation. The Enforcement Decree violates this principle and may be recognized as infringing on the autonomy and democracy of trade unions guaranteed by the Constitution by restricting the right to organize. Therefore, to harmonize the Enforcement Decree with ILO Convention No. 87 and resolve its unconstitutionality, the matters stipulated in the Enforcement Decree should be directly incorporated into the Trade Union Act or at least given a legal basis in the Act. Furthermore, these matters should be regulated in a manner consistent with the content and intent of ILO Convention No. 87.