이른바 ‘노란 봉투 법’과 기본권충돌

Abstract

Several bills called the so-called ‘Yellow Envelope Act’ have been submitted to prevent the contraction of the three labor rights due to lawsuits for damages by expanding the requirements for exemption from liability for damages caused by trade union strikes. Expanding the scope of workers and employers and labor disputes and reducing the scope of liability for damages caused by unjust (illegal) industrial actions means further restricting the guaranteed occupational freedom and property rights of employers. However, freedom of occupation or property rights can be restricted, and these constitutional economic rights can also be restricted by the order of the social market economy. Therefore, it is necessary to guarantee the three labor rights by including those with employment in the category of workers, not only those who provide work by signing a formal labor contract and agree to receive wages or salaries, but also those who have not concluded a formal labor contract, are in the same or substantially similar legal status as workers who have entered into a formal labor contract. Otherwise it is necessary to recognize the same three labor rights guaranteed to workers as those workers who have not conclude labor contracts through additional legislation.
 On the other hand, considering the fact that restrictions on occupational freedom or property rights have already been made at the constitutional level by the Constitution guaranteeing the three labor rights as constitutional rights, the right to claim damages can be applied not only in legitimate industrial actions but also in unjust industrial actions, it seems necessary to reduce it within a reasonable range. Furthermore, when the principle of proportionality, especially the balance of legal interests, is used as the criterion for judging both the three labor rights of workers and the property rights of employers, compensation for damages that make the existence of a trade union impossible or does not meet the financial scale of the trade union should not be recognized. Finally, democratization of the economy, which the Constitution enumerates as a public purpose of state intervention in the market, emphasizes the participation of all members with interests in economic decision-making. Therefore, even though layoffs for corporate restructuring basically belong to the realm of management rights, it seems that they can be included in the subject of labor disputes so that the opinions of workers, who are interested parties, can be reflected.