헌법의 경제질서와 헌법 제32조 및 제33조에서의 근로자 개념의 재검토 (The economy order of the Constitution and rethinking worker concept in Articles 32 and 33 of the Constitution)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 87호 / 143 ~ 197페이지
· 저자명 : 한광수

초록

Unlike traditional wage workers, the new types of workers produced by the digital economy are excluded from the scope of protection of the Labor Relations Act and the social security system.
I wrote this article out of an awareness of how to protect workers in the digital economy who are not protected by labor laws because they are not classified as existing labor relations. This is not a problem unique to Korea, but a common problem faced by other countries around the world. However, other countries protect these workers through court rulings while maintaining the existing labor law system. These countries classify workers in the digital economy into the realm of economic law and protect them through special laws by adding some labor law protection elements. Whether this method is desirable or is not should not be hastily judged. However, it is not desirable to exclude these workers from the scope of protection of the labor law because they have the status of workers who provide labor and make a living.
This article aims to clarify the principles of the economic order pursued by the Constitution, and to study the constitutional significance of the concept of workers stipulated in the labor rights of Articles 32 and 33 of the Constitution in terms of these economic orders.
Through our research, I learned several implications.
First, the economic order stipulated in Article 119 of the Constitution is a social market economic order, and it functions as an independent economic order.
Second, the meaning of ‘social’ in the social economic order can be subject to certain restrictions(limitation of basic rights, principle of prohibition of excess, etc.), and these restrictions must be balanced with the liberal value order and the socialist value order.
Third, the significance of the social market economy order's function to improve the free (capital) market economy and the social rights value-oriented order principle are meaningful in understanding the concept of workers in Articles 32 and 33 of the Constitution.
Fourth, the workers of Article 32 of the Constitution(Paragraph 1, Paragraph 3) and the workers of Article 33 are functionally related to each other. And when we judge subordination as an indicator of the concept of workers, we must consider the conceptual indicators of ‘employment(promotion)’ and ‘(decent)wages’ together.
The constitutional implications of the concept of worker in Articles 32 and 33 of the Constitution are not limited to the traditional labor relationship.
Fifth, the types of work in the digital economy of the 4th industrial revolution are diversifying, and these types of work are significantly increasing. Now, we must prepare a legal system that protects these labors without excluding them from the protection of the labor law. We must reconstruct the concept of workers suitable for the diversified types of work in the digital economy of the future society according to the value system of the Constitution.

영어초록

Unlike traditional wage workers, the new types of workers produced by the digital economy are excluded from the scope of protection of the Labor Relations Act and the social security system.
I wrote this article out of an awareness of how to protect workers in the digital economy who are not protected by labor laws because they are not classified as existing labor relations. This is not a problem unique to Korea, but a common problem faced by other countries around the world. However, other countries protect these workers through court rulings while maintaining the existing labor law system. These countries classify workers in the digital economy into the realm of economic law and protect them through special laws by adding some labor law protection elements. Whether this method is desirable or is not should not be hastily judged. However, it is not desirable to exclude these workers from the scope of protection of the labor law because they have the status of workers who provide labor and make a living.
This article aims to clarify the principles of the economic order pursued by the Constitution, and to study the constitutional significance of the concept of workers stipulated in the labor rights of Articles 32 and 33 of the Constitution in terms of these economic orders.
Through our research, I learned several implications.
First, the economic order stipulated in Article 119 of the Constitution is a social market economic order, and it functions as an independent economic order.
Second, the meaning of ‘social’ in the social economic order can be subject to certain restrictions(limitation of basic rights, principle of prohibition of excess, etc.), and these restrictions must be balanced with the liberal value order and the socialist value order.
Third, the significance of the social market economy order's function to improve the free (capital) market economy and the social rights value-oriented order principle are meaningful in understanding the concept of workers in Articles 32 and 33 of the Constitution.
Fourth, the workers of Article 32 of the Constitution(Paragraph 1, Paragraph 3) and the workers of Article 33 are functionally related to each other. And when we judge subordination as an indicator of the concept of workers, we must consider the conceptual indicators of ‘employment(promotion)’ and ‘(decent)wages’ together.
The constitutional implications of the concept of worker in Articles 32 and 33 of the Constitution are not limited to the traditional labor relationship.
Fifth, the types of work in the digital economy of the 4th industrial revolution are diversifying, and these types of work are significantly increasing. Now, we must prepare a legal system that protects these labors without excluding them from the protection of the labor law. We must reconstruct the concept of workers suitable for the diversified types of work in the digital economy of the future society according to the value system of the Constitution.

참고자료

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