조직형태 변경 절차의 주체로서 노동조합의 개념에 관한 해석론 - ‘독일에서의 단결체 개념을 중심으로’ - (Definition of Union for Unionsformtranslation)

서지정보

· 발행기관 : 한국비교노동법학회
· 수록지 정보 : 노동법논총 / 33권 / 49 ~ 75페이지
· 저자명 : 권혁

초록

Change discipline of organizational form of the labor union is to be able to make the change immediately organization form. Establishment and dissolution procedures of trade unions is very inconvenient. Rules of procedure for the change of organization form in the dimension of the guarantee of the right to organize on the Constitution, has an important meaning. Legislators can not make the law completely. Law must have a shortcoming. Such problems occur when the situation happens especially legislators are not going to be expected at all. Legislators could not expect to change that the industrial unions to the enterprise union. Because it had been prohibited. Now, however, there are multiple unions institutions are allowed. Situation changed. Then, defect of law can be occurred. If the law is not valid, it is necessary to solve these problems through a reasonable interpretation. The overcoming these problems through overall content and the purpose of legislation is analogical application. Recent controversy of organizational changes of union also must be solved by these analogical application. In the Constitution, the labor union makes no distinction between corporate labor union and industrial union. Both are equally protected. Industrial union is not in the lead. With that in mind, The current Labor Union Act Article 16 is a wrong regulation. In other words, it should be re-interpreted reasonably from analogical application.
Traditional precedents deem that the subject of chainging organizational form of the union is limited to case with the eligibility as a labor unions. And the collective bargaining ability is an important element to the eligibility of such union. However, this interpretation is not appropriate. Such a decision is not valid as overly formal literal interpretation.
Even if a small number of workers, they have clear intention that leave the industry union, trying to return to the labor union, so trying to actively exercise their rights, it would be wrong to stop this.
In conclusion The concept of the labor union as the subject of change of organizational form has nothing to do with the presence or absence of the collective bargaining ability. A specific intention wishing to go to an independent collective bargaining that be organized to the extent to be expressed specifically in outside is sufficient.

영어초록

Change discipline of organizational form of the labor union is to be able to make the change immediately organization form. Establishment and dissolution procedures of trade unions is very inconvenient. Rules of procedure for the change of organization form in the dimension of the guarantee of the right to organize on the Constitution, has an important meaning. Legislators can not make the law completely. Law must have a shortcoming. Such problems occur when the situation happens especially legislators are not going to be expected at all. Legislators could not expect to change that the industrial unions to the enterprise union. Because it had been prohibited. Now, however, there are multiple unions institutions are allowed. Situation changed. Then, defect of law can be occurred. If the law is not valid, it is necessary to solve these problems through a reasonable interpretation. The overcoming these problems through overall content and the purpose of legislation is analogical application. Recent controversy of organizational changes of union also must be solved by these analogical application. In the Constitution, the labor union makes no distinction between corporate labor union and industrial union. Both are equally protected. Industrial union is not in the lead. With that in mind, The current Labor Union Act Article 16 is a wrong regulation. In other words, it should be re-interpreted reasonably from analogical application.
Traditional precedents deem that the subject of chainging organizational form of the union is limited to case with the eligibility as a labor unions. And the collective bargaining ability is an important element to the eligibility of such union. However, this interpretation is not appropriate. Such a decision is not valid as overly formal literal interpretation.
Even if a small number of workers, they have clear intention that leave the industry union, trying to return to the labor union, so trying to actively exercise their rights, it would be wrong to stop this.
In conclusion The concept of the labor union as the subject of change of organizational form has nothing to do with the presence or absence of the collective bargaining ability. A specific intention wishing to go to an independent collective bargaining that be organized to the extent to be expressed specifically in outside is sufficient.

참고자료

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