노동기본권의 본질과 쟁의행위

A Nature of the Labor Fundamental Right in Strike

I intend to offer amendment bills against some issues both in the Trade Union and Labor Relations Adjustment Act(TULRAA) and Case Law by the Supreme Court of Korea with respect to strike. So I analyze what is a lawful strike or an unlawful strike in the U.S, Japan, and South Korea each other. Conclusions are as follows: First, I suggest that a strike should be declared unlawful only if it has unlawful purposes or means. A strike, however, has been declared unlawful where a union also failed to satisfy procedural requirements under the TULRAA, that is ballot system and period of mediation etc., by the Supreme Court of Korea. Accordingly I suggest to abolish the requirements through amendment of the Law, or to change case law by the Supreme Court. Second, I suggest that management affairs, that is a mass dismissal or plant closure etc., should be included in mandatory objects of the collective bargaining. The Supreme Court interprets, however, these management affairs above as illegal objects. Third, I suggest, even though an union violated a no-strike clause, this violation has no relations to where the strike is an unlawful or a lawful if the strike is lawful both in its purposes and means. The Supreme Court of Japan takes this position. Of course the Supreme Court of Japan recognizes a civil liability by a violator against other party to agreements. The Supreme Court of Korea, however, interprets a strike that failed to keep a no-strike clause as an unlawful strike, simultaneously recognizes a civil liability by the violator against other party to the agreements. Finally, I suggest that a strike of work to rule should be excluded from a strike category. The Supreme Court of Korea, however, interprets this type strike is also included in a strike category, so an union must satisfy procedural requirements under the TULRAA to do a lawful strike.