재산권행사의 자유와 근로권의 보호 - 판례평석 : 삼미종합특수강사건(대법원 2001.7.27선고,99두2680)

When POSCO took over the financially troubled SAMMI Corporation, many workers were dismissed because the two companies made an <BR>assets sales contract and POSCO declined to continue the employment relationship.<BR> From a standpoint different from those of the Labor Relations Commission and High Court of Justice, the Supreme Court, upon this case, decided that POSCO was not under any obligation to succeed the employment relationship of the SAMMI Corporation.<BR> It is my belief that this decision guarantees the freedom of disposition of property and the freedom of contract excessively based on Neo-liberalism.<BR> However, constitutional law guarantees a person`s economic originality and freedom, and indicates clearly that ones right may be restricted for the public welfare. It also indicates that a worker`s right to work should be guaranteed as it is a concomitant to his/her right to live.<BR> In the open competition system of capitalistic society most workers have to obtain materials necessary for living by their labor. Of course, as the right of privately owned property is guaranteed, one may live by his accumulated property; however, in the case of workers, their security of property is possible only by labor. Even if they have the ability and intention to work, it is very difficult under the structural conditions of unemployment for them to secure their labor opportunity through which they can settle economic inequality and materialize substantial equality through their own voluntary endeavors.<BR> Therefore, it is necessary, on the one hand, for a country to make continuous efforts to establish, maintain and guarantee a system of social security. On the other hand, in order for workers to live a secure life, it is absolutely necessary to guarantee their labor opportunity. In the constitution the right to work is based on such demand so as to substantially back up the so-called right to live, thus it is worthy of itsexistence.<BR> In compliance with the ideologies of the constitutional law, the employer should not exercise his right of property without limit. He is under the obligation to act in good faith and exercise his right lest he trespass onthe worker`s right.<BR> In this case, the Supreme Court decided from an excessively liberalist perspective absent of a modified capitalist viewpoint that the decision was divorced from the social conditions in Korea and did not deal with the worker fairly.<BR> Equality between a worker and his/her employer derives its background in the various thoughts of religion, philosophy, etc. Its final purpose is to pursue the humanization of labor by subjugating the alienation of labor and elevating the respect for human dignity.<BR> To seek the development of sound democracy through the co-prosperity of worker and employer, it is very important to guarantee the rights of the worker and employer equally under the law. The employer`s right of property should be in harmony with the worker`s right t