징계대상자의 방어권 보장 ― 징계위원회에서 조력을 받을 권리를 중심으로 ―

This paper examines the legal necessity of guaranteeing a worker’s right to be accompanied by legal counsel during internal disciplinary procedures in South Korea. Under the current Korean legal system, a significant disparity exists between public and private sector employees regarding their procedural rights. For public officials and military cadets, the Supreme Court ruled in 2018 that excluding a lawyer from a disciplinary hearing constitutes a procedural defect. This ruling was based on the principle of due process and the Administrative Procedure Act, which recognize counsel participation as an essential element of a fair hearing. However, for private sector workers and private school teachers, lower courts frequently deny this right. These courts often cite the absence of explicit statutory provisions in the Labor Standards Act (LSA) or the Private School Act, or the lack of such requirements in a company’s internal Rules of Employment. The author argues that this restrictive approach severely undermines the substantial fairness and integrity of the disciplinary process. The author contends that even if an employer exercises discretionary power to discipline, this power must be constrained by the requirement of “just cause” under the LSA and the principle of “good faith” under the Civil Code. In practice, a disciplinary hearing serves as the only meaningful opportunity for a worker to present a defense against severe professional disadvantages, including the termination of their livelihood. Without professional legal assistance, workers often face psychological intimidation or lack the legal expertise to articulate their defense effectively, rendering the “right to be heard” merely formalistic. Furthermore, the paper critiques the traditional judicial view that treats disciplinary power as an “inherent authority” of the employer. Instead, it proposes that such power should be grounded in “collective norms” or joint agreements between labor and management to ensure democratic legitimacy. In conclusion, unless exceptional circumstances exist—such as the protection of trade secrets or the prevention of intentional procedural delays—restricting a worker’s right to receive legal assistance during a hearing should be recognized as a violation of the essential content of the right to defense. Such exclusion should be deemed a procedural defect that renders the subsequent disciplinary action void. By extending the constitutional value of due process to the private sector, the Korean legal system can better protect workers as active subjects of their employment relationship rather than mere objects of dismissal.