공무원 근로3권의 보장과 사실상노무에 종사하는 공무원의 개념에 관한 고찰 (The Constitutional Meaning of a “Public Official Who is Engaged in Actual Labor”)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 24권 / 1호 / 185 ~ 215페이지
· 저자명 : 정영훈

초록

Article 33(1) of the Korean Constitution prescribes that “[t]o enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Additionally, section 2 of the same article stipulates that “only those public officials, who are designated by Act, shall have the right to association, collective bargaining, and collective action.” These two clauses could be interpreted to allow the legislature to delineate the scope of constitutional protection for public officials’ labor fundamental rights by establishing relevant statutes, such as the State Public Officials Act, Local Public Officials Act, Act on the Establishment, Operation, Etc., of Trade Unions for Teachers, or Act on the Establishment, Operation, Etc., of Public Officials’ Trade Unions. Therefore, the legislature can impose additional restrictions on the labor rights of public officials by considering specific constitutional demands which are drawn from a special legal relation between the public official and the government and from the functional features of the officials’ tasks. Nevertheless, the Constitution excludes “public officials who are engaged in actual labor” from the scope of those whose rights are restricted under the State Public Officials Act. Therefore, the public officials who are engaged in actual labor can enjoy the full protection of labor that other private workers do, whereas the scope of such a public official is specified according to relevant subordinate statutes.
This raises a question as to whether the government has restricted the constitutionally protected labor fundamental rights of the public officials arbitrarily by failing to set clear conditions for recognition of “public officials who are engaged in actual labor,” as can be seen in the subordinate statutes such as Regulation on Public Officials’ Service.
In this context, this paper illuminates the constitutional meanings of debates surrounding the definition of the public officials who are engaged in actual labor. Furthermore, this research leads to another issue as to how this kind of public official could be recognized.
This research makes the following conclusions. Firstly, Articles 33(1) and (2) of the Constitution are interpreted to presume that a certain group of public officials, despite its formal status, can enjoy the full protection of labor fundamental rights. The prescription of “public officials who are engaged in actual labor” found in the Article 66(1) of the State Public Officials Act and the Article 58(1) of the Local Public Officials Act can be considered as a confirmation of such a constitutional presumption.
Secondly, the restrictions on labor fundamental rights of public officials can be justified in the sense that the labor relations of those public officials are regulated based on the status of public officials under Article 7 of the Constitution. Therefore, the current legal framework which restricts public officials in contractual service and public officials in extraordinary service cannot be justified because their status is not as secure as is that of other public officials. Therefore, such groups of public officials should enjoy the same labor fundamental rights that other workers in the private sector do.
Thirdly, a certain group of officials, despite the general application of the constitutional restrictions to the public officials based on Article 7 of the Constitution, should enjoy the relevant rights exceptively as long as the functional features of their tasks do not require special restrictions compared to other public officials. Although it is difficult to provide a clear and general solution to recognize the category of such a public official, the concept of “government enterprises” which act like an ordinary firm in the private market can be a meaningful guideline. In other words, the employee in the government enterprises should enjoy the full protection of labor fundamental rights because there is no difference between the employees in the government enterprises and ones who work for private firms.

영어초록

Article 33(1) of the Korean Constitution prescribes that “[t]o enhance working conditions, workers shall have the right to independent association, collective bargaining, and collective action.” Additionally, section 2 of the same article stipulates that “only those public officials, who are designated by Act, shall have the right to association, collective bargaining, and collective action.” These two clauses could be interpreted to allow the legislature to delineate the scope of constitutional protection for public officials’ labor fundamental rights by establishing relevant statutes, such as the State Public Officials Act, Local Public Officials Act, Act on the Establishment, Operation, Etc., of Trade Unions for Teachers, or Act on the Establishment, Operation, Etc., of Public Officials’ Trade Unions. Therefore, the legislature can impose additional restrictions on the labor rights of public officials by considering specific constitutional demands which are drawn from a special legal relation between the public official and the government and from the functional features of the officials’ tasks. Nevertheless, the Constitution excludes “public officials who are engaged in actual labor” from the scope of those whose rights are restricted under the State Public Officials Act. Therefore, the public officials who are engaged in actual labor can enjoy the full protection of labor that other private workers do, whereas the scope of such a public official is specified according to relevant subordinate statutes.
This raises a question as to whether the government has restricted the constitutionally protected labor fundamental rights of the public officials arbitrarily by failing to set clear conditions for recognition of “public officials who are engaged in actual labor,” as can be seen in the subordinate statutes such as Regulation on Public Officials’ Service.
In this context, this paper illuminates the constitutional meanings of debates surrounding the definition of the public officials who are engaged in actual labor. Furthermore, this research leads to another issue as to how this kind of public official could be recognized.
This research makes the following conclusions. Firstly, Articles 33(1) and (2) of the Constitution are interpreted to presume that a certain group of public officials, despite its formal status, can enjoy the full protection of labor fundamental rights. The prescription of “public officials who are engaged in actual labor” found in the Article 66(1) of the State Public Officials Act and the Article 58(1) of the Local Public Officials Act can be considered as a confirmation of such a constitutional presumption.
Secondly, the restrictions on labor fundamental rights of public officials can be justified in the sense that the labor relations of those public officials are regulated based on the status of public officials under Article 7 of the Constitution. Therefore, the current legal framework which restricts public officials in contractual service and public officials in extraordinary service cannot be justified because their status is not as secure as is that of other public officials. Therefore, such groups of public officials should enjoy the same labor fundamental rights that other workers in the private sector do.
Thirdly, a certain group of officials, despite the general application of the constitutional restrictions to the public officials based on Article 7 of the Constitution, should enjoy the relevant rights exceptively as long as the functional features of their tasks do not require special restrictions compared to other public officials. Although it is difficult to provide a clear and general solution to recognize the category of such a public official, the concept of “government enterprises” which act like an ordinary firm in the private market can be a meaningful guideline. In other words, the employee in the government enterprises should enjoy the full protection of labor fundamental rights because there is no difference between the employees in the government enterprises and ones who work for private firms.

참고자료

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