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인도 노동조합법 ― 노동조합 설립 및 승인과 관련된 문제점을 중심으로 ―
백좌흠 한국비교노동법학회 2009 노동법논총 Vol.17 No.-
The Trade Unions Act, 1926 has some shortcomings in the provisions of formation and recognition of trade unions. They are (a) no provisions for statutory union recognition; (b) lack of the method for ascertaining union membership; (c) to allow the trade union to enroll outsiders as members; (d) no prescription of the time limit within which the Registrar of Trade Unions is to grant or deny registration, etc. The Government of India has, however, not exerted itself to correct these shortcomings for more than 80 years and has perpetuated a weak and divided labour movement. And moreover, as long as the Industrial Disputes Act, 1947 gives to Labour Ministers or Chief Ministers the plenary power to settle industrial disputes, workers will continue to be dependent on outside politicians who have contacts at these Ministers. All this has seriously vitiated not only the trade unions but the industrial scene in India as a whole. Strikes and lock-outs are rampant, although they are almost always illegal. Occasionally there is violence and bloodshed. The Government of India, as the owner of various public sector industries as well as major service industries, is to accept the trade unionism and immediately ratify the ILO Convention on Freedom of Association and Protection of the Right to Organize, 1948 and the ILO Convention on the Right to Organize and Collective Bargaining, 1949. For the first and foremost step to implement all the labour welfare laws as laid down in the ILO Conventions, it has to introduce at once the following changes in the Trade Unions Act: (a) de-linking trade unions from the clutches of politicians by not allowing outsiders to be members of the executive or office bearer of any registered trade union; (b) not to register workers trade unions having less than 15% of the total number of workers of the industry as its members; (c) to make provisions for compulsory recognition of trade unions by the employers; (d) to make provisions for time bound registration of trade unions; (e) to have a consolidated law which would deal with not only trade unions but also unfair labour practices and machinery of settlement of industrial disputes.
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白佐欽 慶尙大學校 1987 論文集 Vol.26 No.2
240 passengers and 29 crew members were killed when Korean Air Lines fight 007 from New York to Seoul ws blown from the sky by rockets fired by Soviet military aircraft over the Sea of Japan on September 1. 1983. In the aftermath of this shocking disaster, many lawsuits were filed in the United States by the surviving family members of passengers killed in the disaster, Eventually all the litigation in the United States was consolidated in the United States District Court for the District of Columbia for coordinated and consolidated proceedings before Chief Judge Aubrey E. Robinson, Jr . The defendants in the litigation were Korean Air Lines, the United States, Boeing ( the manufacturer of the aricraft). Litton ( the manufacturer of the Inertial Navigation System on the aircraft), and the U,S,S,R., but the claims against other defendants than Korean Air Liness were dismissed. International treaties and agreements which can be applied in the litigation are the instruments of the so -called Warsw System governing international air carriage. The Warsaw System consists of a series of conventions and protocols governing the liability of the international air carrier. The backbones of the System are the 1929 Warsaw Convention and the 1955 Hague Protocol amending the Warsaw Convention. In an effort to avoid to their claims the application of any of the provisions of the Warsaw Convention including its provisions which limit or exclude liability of KAL. the plaintiffs argued that Korea and the United States are not in treaty relationship as to the Warsaw Convetion and that the absence of such relationship prevents the Court from applying any of the provisions of the Convention in favor of KAL. The ground of the plaintiffes' argument is that since Korea is a signatory only to the Hague Protocol and the United States in turn is a party only to the Warsaw Convetion, there is no treaty relationship between Korea and the United States as to the Warsaw Convention nor the Warsaw Convention as amended by the Hague Protocol. The argument of the plaintiffs is considered to have raised a fundamental issue in the litigation whether the transportation involved is an international air carriage under the Warsaw Convention or not, that is, whether the Warsaw Convention can be applied to the litigation arising out of one-way air carriage between a State which is a party only to the Warsaw Convention and a State which is a party only to the Hague Protocol. Four relevent academic opinions have been expressed regarding this question. The first, being that of the plaintiffs in the litigation, is as mentioned above, In short , neither the Warsaw Convention nor the Warsaw Convention as amended by the Hague Protocol can be applied because neither State has signed the same treaty as the other. The second is that the Warsaw Convention does apply. The rationale behind this position is that a State adhering to the Hague Protocol which amended the Warsaw Convention, autmatically becomes an adherent to the Warsaw Convention because adherence to the Protocol has no meaning unless it has the effect of adherence to the original Warsaw Convention as well. The third, which was accepted by the Supreme Court of Korea in a very recent decision, is a party only to the Warsaw Convention can be regarded also a party to the amended the Warsaw Convention considering the fact that the amended the Warsaw Convention has been effected on the basis of the original the Warsaw Convention. The fourth, which was accepted by the court in the litigation in question sharing the defedant KAL'S argument. is that the portion of the Warsaw Convention which is not amended by the Hague Protocol applies, because both the Warsaw Convention and the Warsaw Convention as amended by the Protocol, contain that portion. The purpose of the Warsaw Convention was to unfy certain liability rules relating to international transportation by air and the purpose of the Hague Protocol merely was to amend certain of those rules. So the Protocol which cannot be considered separately from the Convention, consists of nothing more than certain amendments to the original Convention: the Convention and the Protocol is read and interpreted togther as one single instrument known as the Warsaw Convention as amended by the Hague Protocol(Article 19 of the protocol. Korea cleary adhered to this amended Warsaw Convention by ratifying the Protocol althought she did not file a separate adherence to the unamended Warsaw Convention (Paragraph 2 of Article 21 and Paragraph 2 of Article 23 of the Protocol). Therefore, at least with respect to "the unamended portions of the Warsaw Convention," the United States and Korea are parties to the same treaty.
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