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초록

영어

Unfair labor practices are acts that infringe upon the labor-management relations that are created by guaranteeing workers’ three primary rights and allowing national intervention in such practices. The current Labor Union Act prohibits five types of unfair labor practices, stipulates the application of penalties to employers who violate those practices, and outlines procedures for relief available to workers through the Labor Relations Commission. This is sometimes referred to as the principle of combination, which incorporates both punishments and administrative relief. By employing a system of punishment and one of administrative relief toward unfair labor practices, the current Labor Union Act has tried to promote advantages and overcome shortcomings from both measures. It accomplishes this by reducing damages caused by unfair labor practices that have already transpired and mitigating incidents before they occur. In theory, minimizing unfair labor practices using a combination of both punishments and administrative relief is ideally effective. However, in reality, it is worth considering that the two measures are not able to achieve their purpose properly because there are many cases in which they are incompatible. When reviewing legislative history, Japan—which operates under a similar system of unfair labor practices to Korea—no longer has regulations that directly punish these practices. Japan has already recognized the limitations of punishment measures and has turned focus instead to administrative relief. In such an environment, several issues were mentioned supporting the transition. First, the definition of unfair labor practices was unclear and was ineffective in determining the components of these crimes. The criminal penalty was also unable to provide essential restitution for unfair labor practices. Finally, in the few cases actually punished, processing was delayed under the punishment measure. As a result, criminal punishment for unfair labor practices was clearly recognized as an unsuitable means of protection for workers in Japan. This research examined the unconstitutionality of the punishment clause for unfair labor practices and confirmed that it is time for Korea to actively discuss its abolition to improve the effectiveness of the unfair labor practice system.

목차

Ⅰ. 문제의 제기
Ⅱ. 일본 부당노동행위 처벌조항과 관련된 입법연혁
Ⅲ. 우리나라 부당노동행위 처벌조항의 성립과 변천
Ⅳ. 비교법적 검토: 부당노동행위 처벌조항의 한계 및 문제점
Ⅴ. 결론
참고문헌

키워드

근로3권 부당노동행위 처벌주의 원상회복주의 병용주의 (일본) 노동조합법 worker’s three primary rights unfair labor practice criminal penalty (principle of punishment) administrative relief (principle of restoration) principle of combination (Japanese) Labor Union Act

저자

• 김희성 [ Kim, Hee-Sung | 강원대학교 법학전문대학원 교수 ] 주저자.
• 최홍기 [ Choi, Hong-Ki | 고려대학교 법학연구원 전임연구원 ] 교신저자

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