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RISS 인기검색어
- 검색키워드
- 저자 : 全昌祚 (검색결과 24 건)
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全昌祚 東亞大學校 1966 東亞論叢 Vol.3 No.-
1) Nowadays, the right of labor disputes is generally guaranteed as the fundamental right of working class, with all the variety of ways of legislation, by the governments of most democratic countries. At the same time workers are no longer responsible civilly as well as criminally for the results caused by the militant acts of workers provided that their acts are legal ones, as the militant activities of the worker against the employer is now considered as the exercise of the right of labor disputes. So the legal guarantee of the right of laborers' conflicts means the civil immunity; and the process of development and establishment of the right is nothing but the history of formation and security of the civil immunity. Therefore I think that we must first trace the history of development of the concept about the right of labor dispute in order to fully understand the civil immunity. The process of development of the right of labor conflicts is generally devided into three historical gradation as follows; 1) denial of the right, 2) liberation of the right, and 3) positive acknowledgement of the right. In chapter 2 of this thesis I have tried to race the course of changes in the concept of the right of labor conflicts through above-mentioned three gradation of development. 2) In chapter 3 of this thesis, I have studied how the civil immunity was formed and established in Germany, France and England with the improvement of the concept about the right of labor conflicts. We can find that the histories of formation of the civil immunity in those countries are long painful and bloody ones for workers, when we notice that the civil immunity is nothing but the fruit or trophy secured by hard and desperate struggle by workers for the establishment of the right of labor conflicts. Thus the civil immunity came to be guaranteed as a legal system in most modern countries through double elements or moments, that is, the right-conscious labor movement and what is called the sagacity of capitalism. Consequently the workers came to be exempted from the responsibility of compensation for damage aroused by the violating of labor contract or tore that brought forth during the laborer's militant activities, so long as the activities are regarded as legal ones. In article 8 of our Labor Dispute Mediation Law was also provided the civil immunity of laborers as to the legal militant activities against the employer. 3) Chapter 4 is chiefly devoted to the study of the essential character of the right of labor conflicts because such a study is closely related to the formation of legal theory about the civil immunity. 4) Though the civil immunity is legally guaranteed in principle, all the militant activities are not lawful and not exempted from civil' responsibility. These activities may be considered as unlawful ones unless they have legality. The legality of the militant acts is the requisite for the civil immunity. Then what is the substance of legality? What is the general standard with which to evaluate the legality of the militant activities? This problem is the theme of chapter 5 of this thesis. Still we can not find a general Opinion about it, but the concept "the sound social sense" is now generally accepted as the general standard of legal evaluation by some scholars. But some other scholars are pretty skeptical of the standard and give up forming the proper substance of it on account of the fact that the concept "the sound social sense" is too abstract and unsubstantial to be applied to the evaluation of legality of concrete militant activities. The concept the sound social sense, is newly shaped one in the realm of labor law on the basis of amendment of civil law's principles, and consequently it seems to be inevitable that the concept is somewhat abstract and unsubstantial. But I think, as stated in chapter 5 of this thesis, that we can shape the substantial contents of the concept"the sound social sense"with the secondary principles which support the concept, and these secondary principles can be found through the study of the essential character of the right of labor conflicts, and the study of judgement about the individual dispute case. Besides, in chapter 5, I have also touched on the legality about the typical type of militant act from the view points of objective and measure. But to my regret I can net but admire that {here still remain many important problems which I did not touch on in this thesis in connection with the legality of the militant activities of workers.
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