근로관계와 경영권의 법적성질에 관한 연구 = A Study on the Legal Nature of Employment Relations and Management Right

다국어 초록 (Multilingual Abstract)

Employment relations are established on the basis of an employment contract in principle, closely related each other and at the same time are legal relations that bind mutually. Furthermore, a management right and unityㆍcollective action right are mutually restricted relations. With the realization of democratization of labor-management relations, the use of the right has been developed into accepting mutual limitation. Although unity action was only activity of citizens' collective expression in the level of civil laws, it could have legal approval of special protective exemption in an aspect of labor laws through an amendment to a principle of civil laws. Its objective is to secure criminal and civil exemption of union activity and to prohibit unifair labor action, which is originally implied in the constitution. Accordingly, interpretation theory that distinguishes unity action from the beginning cannot be accepted. It is because both a strike and unity action by agreement pursue a common goal to realize the value of right to live.
Employment relations are formed on the basis of the mutual rightㆍobligation of employer and employee. While employees have the obligation to provide agreed labor in employment relations, an emloyer has a claim to provide labor against employees in principle. Employer's right to use or dispose employees' labor as a company manager for the purpose of business can be acquired by contract with employees. There is no way to dispose such labor in employer's own right free from such contract relations. Employees should obey employer's command and order in the process of providing labor and follow manager's measures to maintain management facilities and order. In the words, employees should provide labor according to employer's right to command labor that is specific indication of a claim to provide labor, and at tne same time observe management order based on employer's right to own management facilities and to control facilities.
On the other hand, the concept of a management right is employer's own right. Although a precedent admits it as a legal right, it cannot be admitted as a right based on the positive law. But its scope of execution as a decision making right reserved to an employer also is limited to legal matters. While some deny the existence of a management right on the basis of its fail to prescibe specifically in constitution or laws like the trade union right, others argue that a management right should be admitted as a nature right because an organizational consistency must be maintained with the management of a property right, considering that constitution ensures it as a property right.
Manger's right of management is economic power that controls land, labor, wealth, or company production and may be understood as a series of right of property operation that a manger(capitalist) owns means of production, combines them organizationally, and conduct production activity. Moreover, today a capital has been separated from management. Managers should be responsible for company's environment and have the function to fulfill the responsibility as their own right. Some argue that it is managers' exclusive decision matters that do not need to discuss in collective bargaining, which is called a management right. Such a management right is company's own function and governs labor-managemant relations.
However, the problem is whether there is manger's management right correspondent to employees' labor right. While the trade union right is expressly stipulated in the text of constitution or labor relations laws, a management employment relations and its relations with a management right, and the legal meaning and nature of a management right, which is very important in the right of the establish modern characteristics of labor-management right and the concept of a management right that meets in reailty.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 勤勞關係의 法的性質
• Ⅲ. 經營權의 法的性質
• Ⅳ. 結論