우리나라 집단노동법의 형성과정과 외국법의 영향 (A Study on Legislative process and the Impact of Foreign law in Korea Collective Labor Law)

서지정보

· 발행기관 : 노동법이론실무학회
· 수록지 정보 : 노동법포럼 / 16호 / 159 ~ 224페이지
· 저자명 : 배인연

초록

Korea has steadily introduced labor policies in response to the labor movements the era of US military government came after the period of Japanese occupation. However, Japan didn’t have notable collective labor policies other than proposing of a draft of『 the Trade Union Act』 in 1925 and forcing mediation for the labor disputes on the public business by 『the Labor Disputes Mediation Act』 in 1926. Rather Japan has continued to suppress the workers' movements by governmental authority such as 『the Security Policy Act』 until GHQ’s governing.
And Japan has enacted『 the Trade Union Act』,『 the Labor Mediation Act』 and『 the Constitution』 in 1945 and 1946 by the GHQ with the similar contents as the present.
Their main contents are the constitutional guarantee of the basic labor rights『( Constitution』 Article 28), negative and positive requirements of the trade union『( the Trade Union Act』, Article 2), the principle of report in establishing trade union(Article 5 of the Act), the collective action immunity(Article 1 paragraph 2 of the Act) and civil immunity (Article 12 of the Act), incorporation of a trade union(Article 11 of the Act), the normative effect and general binding of a collective agreements, voluntarism for the mediation (Article 25 of the Act), and etc.
And the GHQ has amended 『the Trade Labor Act』 in 1949 of which contains major amendments as follows; changing from duty of registering of a union establishment to free of a union establishment, strengthening independence of labor unions, restricting the intervention of the administrative authorities toward labor unions, introduction of the unfair labor practices, and etc.
In Korea, Collective labor policies have been in progress since 1945; Suppression of industrial action by the mediation system, the requirements of a democratic trade union, trade union registration system, Limitation of industrial action by the definition of the labor dispute, limitation of the economic purpose of the union activities, the exclusive bargaining representative system, the exclusion of political movements of a union activity, unfair labor practices and etc. So in terms of its content and process, they have been carried out on their own regardless to Japan and they have been reflected in『 the collective labor act』 in Korea.
Although the format of the constitutional labor rights in Korea is similar to the one in Japan, considering the process of the legislation or the nature of the constitutional labor rights which is basically the right of freedom,『 the Korean Constitution』 doesn’t seem to inherited『 the Japanese Constitution』 as it was and in my opinion, from the fact that Korea and Japan had stipulated the collective action in their『 Constitutions』, they have been affected by『 the French Constitution』.
In the collective labor law, the mediation system, the obligation to the mediation, the definition of the labor dispute, and unfair labor practices were introduced from American labor legal system.
The prohibition of political activities by trade unions seems to be Korea’s selfdeveloped system.
The normative effect of the collective was intruduced to Korea from the German’s collective agreement order( 『Tarifvertragsordnung』) in 1918 via Japan, and the civil immunity for industrial action from the UK’s『 the labor dispute law』 『( Trade disputeact』) in 1945 via Japan’s『 the labor Union Law』 since such system did not yet exist in Korea and Japan.
And Korea has introduced an exclusive bargaining system from America in the period of U.S Military government of which was not discussed in Japan at that time.
Although the trade union registration system and the requirements of a trade union have been implemented by the U.S military government in our country, the trade union registration system seems to had been introduced from Japan to Korea since such system was existed in Japan’s the Trade Union act’ in 1925 and the terms being similar to the Japan.
In conclusion, Korea has constantly introduced labor policies in response to labor movements since the era of US military government unlike Japan, Japan had only a few labor policies such as forced mediation for the public industry by『 the labor disputes mediation act』 until the rule by the GHQ.
Collective labor law in Japan can be seen as mimics of foreign legal systems rather than a theoretical construction with its own policies despite some discussions on the process.
In the process of enactment of the collective labor law, Korea made independent progress unlike Japan which was led by GHQ Therefore, although some parts of Korea’s collective labor law were influenced by Japan’s law, most of the important rules came from some foreign legal systems and some from the previous policies in Korea.

영어초록

Korea has steadily introduced labor policies in response to the labor movements the era of US military government came after the period of Japanese occupation. However, Japan didn’t have notable collective labor policies other than proposing of a draft of『 the Trade Union Act』 in 1925 and forcing mediation for the labor disputes on the public business by 『the Labor Disputes Mediation Act』 in 1926. Rather Japan has continued to suppress the workers' movements by governmental authority such as 『the Security Policy Act』 until GHQ’s governing.
And Japan has enacted『 the Trade Union Act』,『 the Labor Mediation Act』 and『 the Constitution』 in 1945 and 1946 by the GHQ with the similar contents as the present.
Their main contents are the constitutional guarantee of the basic labor rights『( Constitution』 Article 28), negative and positive requirements of the trade union『( the Trade Union Act』, Article 2), the principle of report in establishing trade union(Article 5 of the Act), the collective action immunity(Article 1 paragraph 2 of the Act) and civil immunity (Article 12 of the Act), incorporation of a trade union(Article 11 of the Act), the normative effect and general binding of a collective agreements, voluntarism for the mediation (Article 25 of the Act), and etc.
And the GHQ has amended 『the Trade Labor Act』 in 1949 of which contains major amendments as follows; changing from duty of registering of a union establishment to free of a union establishment, strengthening independence of labor unions, restricting the intervention of the administrative authorities toward labor unions, introduction of the unfair labor practices, and etc.
In Korea, Collective labor policies have been in progress since 1945; Suppression of industrial action by the mediation system, the requirements of a democratic trade union, trade union registration system, Limitation of industrial action by the definition of the labor dispute, limitation of the economic purpose of the union activities, the exclusive bargaining representative system, the exclusion of political movements of a union activity, unfair labor practices and etc. So in terms of its content and process, they have been carried out on their own regardless to Japan and they have been reflected in『 the collective labor act』 in Korea.
Although the format of the constitutional labor rights in Korea is similar to the one in Japan, considering the process of the legislation or the nature of the constitutional labor rights which is basically the right of freedom,『 the Korean Constitution』 doesn’t seem to inherited『 the Japanese Constitution』 as it was and in my opinion, from the fact that Korea and Japan had stipulated the collective action in their『 Constitutions』, they have been affected by『 the French Constitution』.
In the collective labor law, the mediation system, the obligation to the mediation, the definition of the labor dispute, and unfair labor practices were introduced from American labor legal system.
The prohibition of political activities by trade unions seems to be Korea’s selfdeveloped system.
The normative effect of the collective was intruduced to Korea from the German’s collective agreement order( 『Tarifvertragsordnung』) in 1918 via Japan, and the civil immunity for industrial action from the UK’s『 the labor dispute law』 『( Trade disputeact』) in 1945 via Japan’s『 the labor Union Law』 since such system did not yet exist in Korea and Japan.
And Korea has introduced an exclusive bargaining system from America in the period of U.S Military government of which was not discussed in Japan at that time.
Although the trade union registration system and the requirements of a trade union have been implemented by the U.S military government in our country, the trade union registration system seems to had been introduced from Japan to Korea since such system was existed in Japan’s the Trade Union act’ in 1925 and the terms being similar to the Japan.
In conclusion, Korea has constantly introduced labor policies in response to labor movements since the era of US military government unlike Japan, Japan had only a few labor policies such as forced mediation for the public industry by『 the labor disputes mediation act』 until the rule by the GHQ.
Collective labor law in Japan can be seen as mimics of foreign legal systems rather than a theoretical construction with its own policies despite some discussions on the process.
In the process of enactment of the collective labor law, Korea made independent progress unlike Japan which was led by GHQ Therefore, although some parts of Korea’s collective labor law were influenced by Japan’s law, most of the important rules came from some foreign legal systems and some from the previous policies in Korea.

참고자료

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