근로삼권의 자유권성에 관한 연구

Today, many constitutional textbooks and precedents explain the three basic labor rights as social fundamental rights or mixed rights that simultaneously possess the characteristics of both liberty and social rights. While this recognition is justified in terms of the social-state ideology aiming for substantive equality between workers and employers, there is a concern that focusing solely on ideological classification may weaken the specific normative power of the three basic labor rights. If these rights are understood only as social rights requiring active state intervention, a contradiction may arise where the essential content of constitutional rights is restricted within the framework of legal regulation and reservation. Particularly in the case of the right to collective action, determining its specific content based on state permission directly contradicts the liberty right nature of the right to collective action. Therefore, clearly recognizing the constitutional normative meaning of the three basic labor rights as liberty rights is extremely important for the realization of democratic ideals and the maximum protection of fundamental rights. The most basic starting point for classifying fundamental rights should be placed on the aspect of legal effect: whether the relevant right can realize subjective rights through constitutional provisions alone or only through legislation. Liberty rights possess a defensive nature that excludes state interference without justifiable cause, and a certain protection area is established by constitutional provisions alone. On the other hand, social fundamental rights are realized by the state's action, and their scope as subjective rights is primarily determined by legislation, taking on the character of fundamental- right-forming legal reservation. If the three basic labor rights are understood as liberty rights, they are likely to receive relatively stronger constitutional protection than when viewed as social rights, and their infringement can be scrutinized under the principle of proportionality. The concept of ‘worker’, the subject of the three basic labor rights, should also possess independence and openness at the constitutional level, rather than being entirely determined by law. A worker under Article 33 of the Constitution refers to one who needs to exercise the three basic labor rights, which can include not only typical factory workers but also citizens providing labor in relations of substantive subordination. While the constitutional concept of a worker has an open aspect that can change according to times and circumstances, the state must respect the minimum constitutional protection area for those who can be understood as workers in the contemporary era. That is, legislation that excludes citizens who have concluded a labor contract, are under subordinate management and control, and live on wage income from being subjects of the three basic labor rights is highly likely to be judged unconstitutional. Looking at individual rights, the right to organize is understood as a liberty right with the character of a special law regarding the freedom of association. This is not a right newly created by law, but the Constitution confirms and guarantees a pre-existing freedom; the core essence—the freedom for workers to choose, organize, and join a group—cannot be infringed upon by the state. The right to collective bargaining also reflects the freedom of contract to negotiate contract terms in a collective form. Its subjective protection area is established by constitutional provisions alone, giving it the character of a specific right that prevents employers from refusing collective bargaining itself. The right to collective action is an expression of the right to self-determination, where workers decide whether to provide their labor. Civil and criminal immunity for legitimate collective action should be understood as a natural legal effect of the guarantee of liberty rights, not as a state favor or policy exception. In practical terms, while the Constitutional Court has stated that the three basic labor rights simultaneously possess social right characteristics, it has consistently used the principle of proportionality—the scrutiny standard for liberty rights—in actual unconstitutionality review processes. In numerous decisions concerning private school teachers, railway corporation employees, and special security guards, the Constitutional Court performed proportionality reviews examining the legitimacy of legislative purpose, suitability of means, minimality of infringement, and balance of legal interests. This demonstrates that the three basic labor rights are treated as complete liberty rights in practice, and it is difficult to find examples of relaxed scrutiny standards based on their character as social fundamental rights. Consequently, both the Supreme Court and the Constitutional Court treat the three basic labor rights as liberty rights by recognizing their specific entitlement and direct effect. In conclusion, the three basic labor rights are universal human rights and liberty rights based on human dignity and the right to self-determination. When these rights are clearly recognized as rights guaranteed freedom from state power amidst epochal changes like digital transformation and the expansion of the platform economy, the principle of maximum protection of fundamental rights can be realized.