노동법에 있어 경영권의 비판적 고찰

신권철(Shin, Kwon-Chul) 한국노동법학회 2017 노동법학 Vol.0 No.63

There is no management right in the 1987 Korean Constitution. Instead, the Constitution provides that all citizens shall have the right to work and to enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action. The Korean Supreme Court in 2002 decided that the decision of implementing corporate restructuring, including layoff or business merger, falls within the scope of high-level management decision may not be a subject of collective bargaining, as a general rule and a labor union"s strike essentially to oppose the implementation of such corporate restructuring is not justifiable even if the corporate restructuring inevitably entails changes in the status of workers or their working conditions. This decision is to protect management right and to restrict labor right based on the constitution. This article focuses on the Supreme Court’s judicial precedents on management right. In the Supreme Court decisions, employer’s decisions on management in workplace is referred to as non-negotiables with labor union. The main purpose of this article is to criticize management right based on the property rights in the constitution. Management right like paternal power or sovereign power is in fact the power to control employees acquired through the employment contract . Employer’s right to manage a business from the property rights is converted to the power to subordinate employees through contract. This article concludes that management rights can’t be constitutional rights nor sacred and inviolable prerogatives. Management rights to control employee is a de facto ‘potestas’ which is a Latin word meaning power. It should be controlled by the law and labor right.

쟁의행위와 민사책임 -판례분석을 중심으로-

신권철 ( Kwon Chul Shin ) 법조협회 2011 법조 Vol.60 No.6

Article 33 Paragraph (1) of the Constitution provides To enhance working conditions, workers shall have the right to independent association, collective bargaining and collective actions. According to the Constitutional clause, article 3 of Trade union and labor relations adjustment act(hereafter the Act) provides In case where an employer has suffered damages due to collective bargaining or strike(industrial action) under this act, he shall not claim damages against a trade union or workers. The supreme court have decided that illegal strikes should not be recognized as protected by the Act. According the decisions of supreme court, in order that an industrial action by workers can constitute a lawful action, various conditions including the following must be met and satisfied: firstly, the leader of the industrial action must be qualified to a representative of the labor to the collective bargaining; secondly, the purpose of the industrial action is to facilitate self-governing negotiations between labor and management for the improvement of working conditions; thirdly, the industrial action should commence when the employer rejected the collective bargaining in response to the specific requests of workers for the improvement of their working conditions, the procedures required by applicable laws and regulations including the decision by union members on approval or disapproval of the strike must be carried out; and fourthly, the means and way of the industrial action must be harmonious with the employer`s property right and shall not fall under any exercise of violence. Thus, if a strike pursues various purposes and some of which are not justifiable, the legitimacy of the strike itself should be determined by the legitimacy of the essential purpose of the strike and if a labor union violates government procedures, their actions become illegal. This study is dealing with the issues on the civil liability of industrial actions. This study analyzes judicial precedents of the supreme court about illegal strike case. In conclusion, the proposal of this study is that the difference between strike as the right to collective refusal of labor and illegal action attendant upon strike as positive tort should be recognized.

硏究論文 : 이혼사유로서 정신질환의 법적 고찰

申權澈 ( Kwon Chul Shin ) 법조협회 2012 법조 Vol.61 No.10

Mental illness is not only a kind of disease but also a ground for divorce. Korea has preserved traditional fault grounds for divorce. Article 840 of the Korean Civil Law Code does not explicitly provide that mental illness is ground for divorce, but serious mental illness is a ground for divorce in Korean court. Mental illness as grounds for divorce is different from other grounds for divorce like adultery, cruelty, abandonment or desertion. Though mental illness is not his/her fault, but disease like cancer or stroke, law permits mental illness irrespective of his/her will to make a marriage dissolve. Mentally ill spouse is required to be cared during marriage and post divorce, but in current divorce law this study is dealing with the legal issues on mental illness as grounds for divorce. This study focuses on the legal history of mental illness as grounds for divorce in chapter Ⅱ, and analyzes judicial precedents of the supreme court about mental illness divorce case in chapter Ⅲ. In conclusion, mental illness itself is not grounds for divorce. The difference between mental illness as grounds for divorce and other grounds for divorce should be recognized, and no-fault mentally ill spouses should be provided the protection and care of former spouses or country with the use of the marital property.

정신질환자 개념의 규범적 고찰

신권철 ( Kwon Chul Shin ) 법조협회 2010 법조 Vol.59 No.5

``정신질환자``라 함은 정신질환을 가진 사람이라는 관념으로 쉽게 이해될 수 있으나, 그것이 일정한 법령의 적용대상이 되는 사람이라는 개념으로 구성될 때에는 그 범주가 불명확하다. 정신질환자는 현행 정신보건법상 강제입원의 대상이 될 수도 있고, 장애인복지법상의 정신적 장애인으로 보호대상이 될 수도 있으며, 의사나 미용사 등 법령상 각종 자격취득을 제한받는 자가 될 수도 있다. 즉, 사회는 법령을 통해 정신질환자를 수용하기도 하고, 복지혜택을 제공하기도 하며, 일정한 자격을 제한하기도 하는데, 각 법령이 요구하는 정신질환자의 범주는 통일되어 있지 않다. 현재 입법예고된 정신보건법 개정안은 정신질환자의 자격취득제한을 완화하고자 ``기능저하 정신질환자``라는 개념을 새로이 도입하면서 기능저하 정신질환자 진단을 받은 자가 신청하여 국가기관인 정신보건심판위원회에서 자격취득이 제한되는 정신질환자를 판정하도록 하고 있다. 이 글은 ``정신질환자`` 개념을 우리 법령들 속에서 다각도로 이해하여야 함을 제시하고자 한다. ``정신질환자``가 우리 사회에서 오랫동안 사회적 배제나 낙인의 대상으로 인식되어 온 경향이 강하고, 실제 정신보건법에 의한 강제입원의 실태나 각종 법령상 자격제한의 태도 또한 이러한 사회적 배제의 인식을 강화시키는 측면이 있다는 점을 이 글에서는 지적하고자 하며, 이러한 사회적 배제를 감소시키고 정신질환자의 사회적 통합이라는 관점에서 정신질환자 개념을 규범적으로 이해해 보고자 한다.

채용의 공정

신권철(Shin, Kwon-Chul) 한국노동법학회 2018 노동법학 Vol.0 No.67

Labor law shall govern individual labor relations and collective labor relations of labor relations parties. These labor relations are based on the assumption that employer and employee are incorporated into the business organization through contracts, which made it difficult for the labor law to intervene in the recruitment process itself. Employers and employees included in the labor relations are subject to the Labor Standards Act and the Labor Union Act, but recruitment process are considered to be free from the discipline of labor law. This conception is based on the freedom of employment which is derived from freedom of contract. In 2014, the Act on the Fairness of the Recruitment Process was enacted to prohibit procedural unfair activities such as false recruitment advertisement, recruitment examination fee and to impose employer to notify job-seekers of recruitment schedule and recruitment process in advance and return the documents of job-seekers who require them. In 2017 and 2018, the revised bills of the Act on the Fairness of the Recruitment Process that require substantive and procedural fairness of recruitment process, such as cancellation of unfair employment, disclosure of employment evaluation rankings and scores, organization of employment screening committees are contested in the National Assembly. This situation shows that society recognizes the need for restrictions on freedom of employment the procedures, both inside and outside. One of the measures for fairness in the recruiting process is crackdown on recruitment of corporations and public institutions which is launched with strong determination by new government. The demand fore fairness of recruitment process in open competition system comes from the job-seeker’s anger that has arisen from corruption and irrationality in the recruitment process such as manipulated scores, dishonest solicitation and jobs-for-cash brokerage. This paper shows the possibility of hiring of the job-seekers affected by unfair adoption and dismissal of unjustified employee as a means of correcting the unfairness in the recruitment process from the point of view of legal justice.

강제입원제도와 사법적 통제

신권철 ( Shin Kwon Chul ) 사법정책연구원 2025 현안보고서 Vol.2025 No.5

한국 정신보건법의 변화와 그 의미

신권철(Shin, Kwon-Chul) 경희법학연구소 2017 경희법학 Vol.52 No.3

The Mental Health Act 1995 is revised completely in 2016. The name of the Act is changed to Act on the Improvement Of Mental Health and the Support for Welfare Services for Mental Patients(hereinafter referred to as “the Act”). The core of the Act is involuntary admission. The article 24 in the Mental Health Act 1995 which stipulated involuntary admission by the nearest relatives and the mental health hospital directors was unconstitutional(unconformable to constitution) in September 2016. The article 24 in the Mental Health Act 1995 is revised to be the article 43 in the Act, which provides that involuntary admission by the nearest relatives and the mental health hospital directors is strictly restricted. The Mental Health and Welfare Act needs to improve the review bodies of involuntary admission. The review bodies in the Act is insufficient for independence and neutrality. The review bodies are in fact not judicial bodies but medical bodies and the review method is by document, not in face to face. The constitution and review method of the bodies is inconsistent with international rules of UN MI Principles and CRPD and it is outdated. This article surveys the history of involuntary admission through extension of space and time. The Mental Health Act 1995 in Korea originated in the France act concerning the insane 1838. In the 20th century, involuntary admission of mental health law succeeded the vagrancy law and lunacy law in Europe. The purpose of Involuntary admission was for public safety based on police power in the first half if 20th century and since that time its purpose focuses on treatment and welfare of the Mentally ill based on parens patriae power. Legal nature of the Mental Health Act 1995 in Korea was police law and involuntary admission is security measures of the potential mentally disordered offender. but the Mental Health and Welfare Act is for the welfare and human dignity of the mentally ill. This change in the goal of the Act is due to the participation of the mentally ill organizations and advocacy groups in the legislation process. The Act provides that the mentally ill have the self-determination right explicitly and have right to be heard implicitly on the demand of the participants in legislation.

하청노동관계의 법적 구성

신권철(Shin, Kwon-Chul) 한국노동법학회 2015 노동법학 Vol.0 No.56

Subcontracting labor brings about double subordination. One is the subordination of subcontractor to principal contractor, the other is the subordination of employee to employer. One of the most important problems in subcontracting labor relation is who is the real employer of the subcontracting employees. Principal contractor is apt to be relieved of employer’s responsibility to subcontracting employee through certain kinds of contract, for example, outside order, outsourcing contract, contract with subsidiary company, in-house subcontract, and etc. Subcontracting labor relation is the chain of the legal relation which is composed of contract and labor in fact. Labor law on the assumption of direct employment relation between labor receiver and laborer is difficult to be applied on labor relation in subcontracting chain. Principal contractor is free from responsibility as a employer in labor law through subcontracting chain. But principal contractor’s exemption from the responsibility is circumscribed by the fact of working under his direction. The Supreme Court’ judicial precedents on subcontracting labor relation give decisions that the person who directs and pays workers substantially is the employer. The Supreme Court decided that if a person employed by a subcontractor but engaged in the business of principal contractor, and working at the business place of principal contractor, to be seen as an employee of principal contractor, the subcontractor must be lacking in its identity or independence as a business owner to the extent of it being regarded as a labor agency for principal contractor and its existence nothing more than a formality. In this case, the Supreme Court concluded that the employee in question must be in a subordinate relationship to the principal contractor and receive wages from him in exchange for providing labor to him, thus clearly establishing an implicit labor contract between such employee and the principal contractor. The Supreme Court’s conclusion is to seek the substantial employer under the veil of subcontracting chain and to burden him with liability as a employer.

전교조 사건을 통해 본 법외노조 통보제도의 문제점

신권철(Shin, Kwon-Chul) 한국노동법학회 2015 노동법학 Vol.0 No.55

The Korean Teachers and Education Workers Union(hereafter ‘KTU’) which is the biggest teachers’ trade union in South Korea has been outlawed by the Labor Ministry. In 2013, KTU became illegal union and is facing loss of union’s fundamental rights because the Labor Ministry declare KTU to be outlawed. Under the Trade Union and Labor Relations Adjustment Act, only employee is qualified to become union members. But the KTU’s constitution allows dismissed teachers to become KTU members. In 2010, The Labor Ministry ordered KTU to revise KTU’s constitution. But the KTU rejected the Labor Ministry’ order and filed a lawsuit against the Labor Ministry. In Conclusion, KTU lost the suit and the Labor Ministry decide to outlaw(deregister) the KTU on 24 October 2013 on account of KTU’s constitution which permit dismissed teachers to become union members. The KTU filed a lawsuit again and preliminary injunction against the Labor Ministry which is going to deprive KTU of legal status as a union. This article shows that the loss of legal status as a trade union which is notified by administrative body due not to trade union’s actions but to trade union’s being may infringes on freedom of organization for laborer. The administrative notification which outlaw trade union is not based on the Trade Union and Labor Relations Adjustment Act but based on the enforcement regulations. This is not legitimacy and compliance of the Korean Constitution. The outlawry of the trade union possibly goes against labor rights ensured under the Constitution.

법외노조 통보제도

신권철(Shin, Kwon-Chul) 한국노동법학회 2014 노동법학 Vol.0 No.50

The revised Trade Union Act in 1987 abolished the dissolution order system of trade union by administrative authorities and the revised enforcement decree of the Trade Union Act in 1987 established the notification system of outlawed trade union. In terms of trade union control system by administrative authorities, outlawed trade union notification system was substituted for dissolution order of trade union by administrative authorities in 1987. The notification of outlawed trade union by administrative authorities is a declaration which outlaw a registered trade union. In fact the notification deprive a registered trade union of rights to bargain collectively with employers which are the fundamental rights of trade union. The administrative authorities and employers regards the outlawed trade union as an illegitimate entity. The trade union which is notified of outlawry by administrative authorities become a de facto illegal entity without execution. The legal status of outlawed trade union is similar to Homo Sacer in roman law. Homo Sacer who can be killed without punishing the murderer means a person excluded from society and deprived of all rights. The outlawed trade union is outside of law and unprotected by the law. The right of outlawed trade union is deprived of by the administrative notification and outlawed trade union can not use the title of trade union. This article shows that outlawed trade union notification system in Korea plays a role of control system of trade union.