일본 공무원의 노동기본권과 노동조합 - 입법 논의의 검토를 중심으로

Abstract

In Japan, the Supreme Court has concentrated on the theory of interpretation of the Constitution in the case of the post - strike liability of civil servants who are prohibited from engaging in industrial action, and has accumulated legal logic on the limitation of basic labor rights in a way that changes its own logic. As such, in Japan, fundamental rights to labor of the public employee was the subject of important issues that span not only the constitution but also Labor Union Law and administrative law.BR In the reform of the public service system, which has been in full swing since the 2000s, fundamental rights to labor of the public employee have received attention in Japan. In particular, November 20, 2002, the ILO Board of Governors expressed the freedom of association, stating that it violates ILO Fundamental Conventions No. 87 and No. 98, which has already been ratified by Labor Relations Adjustment Law of Japanese civil servants, and recommended that the system is improved in accordance with the Convention. Adopted the Commission’s report. Therefore, the focus of discussion on the fundamental rights of public servants in Japan is the re-establishment of Civil Servant Law in compliance with Article 28 of the Japanese Constitution and ILO Conventions 87 and 98 on the premise of the Supreme Court’s case law.BR In Korea, the founding constitution in 1948, in principle, did not restrict the fundamental rights to labor of the public employee, but they could not discuss the basic labor rights of the public officials due to division and war. In 1962, as a military regime came into being, basic labor rights were totally denied to a general public employee in accordance with Article 33 (2) of the Constitution and Article 66 of the National Public Service Act.BR The two countries are: ① guaranteeing fundamental rights to labor by seeing the public employee as workers in the Constitution; ② the legal system of labor relations is very similar; and ③ there is little difference in the constitutionality of restricting the fundamental rights to labor(right to strike). Since the democratization of Korea, January 28, 2006, the act of public officials’ trade unions was enacted to lay the foundations for the formation of labor-management relations among civil servants. However, there are many challenges related to the ratification of the ILO Fundamental Conventions. It is when we need to make efforts to reduce our trial and error by taking advantage of Japan ‘s experience.