공무원의 해고구제절차에 있어서 몇 가지 문제점 = Several Problems on Remedial Procedure of Dismissal for Public Officials

다국어 초록 (Multilingual Abstract)

In common with general workers, Remedial Procedure of Dismissal for public officials can be divided into two procedures, one is for Unfair Labor Practices and the other is for Unfair Dismissal. These Remedial Procedures raise several problems to which we suggest the following solutions.
First, the Remedy Institution of Dismissal for public officials is composed of Labor Relations Committee and Appeals Commission, and basically the former controls Remedy of Unfair Labor Practices, and the latter controls Remedy of Unfair Dismissal. The proposed problem is whether exceptional jurisdiction of the basic work responsibility can be accepted or not.
According to the current law, public officials can file for Remedial Procedure of Unfair Labor Practices to Appeals Commission, but they cannot file for Remedy of Unfair Dismissal to Labor Relations Committee. Duplicated application should be accepted because each Remedy Procedure is a different system.
Second, the Procedure of Dismissal for public officials for both Labor Relations Committee and Appeals Commission Remedy has the characteristics of Special Administration Adjudication, so the Administrative Adjudication Law should be adapted except for the special case which contains the specialty and expertise.
By the Law of Certified Public Labor Attorney, he or she can have delegable authority of Remedy Procedure of Labor Union Act, because Labor Union Act for public officials is within the range of certified labor public attorneys' duty.
Also, the person who substitute adjudication request logically can be regarded as a legal representative by Administrative Adjudication Law. Thus, a certified public labor attorney should be able to have delegable authority by revising the Public Officials Law by which the Appeals is limited to attorneys
Third, the Effect of Sentence of Adjudication is accepted by Administrative Adjudication Law, and then the Effect of Sentence in terms of Remedy Request of Labor Union Committee for public officials should be considered.
In the case of public officials, Dismissal as Unfair Labor Practices is Administrative Measure, and judgment of the Central Labor Relations Committee is the decision of Administrative Adjudication, so the Effect of Sentence by the first clause of Article 49 of Administrative Adjudication Law should be accepted.
Thus, Government has to comply with the Remedial Order by 'National Labor Relations Commission' on the civil servants' remedy requests of Unfair Labor Practice dismissal in any case and prohibit the government from filing 'Administrative Litigation' against the order.

목차 (Table of Contents)

• 국문초록
• Ⅰ. 서론
• Ⅱ. 공무원의 해고구제관장기관
• Ⅲ. 공무원 해고구제절차의 특별행정심판성
• Ⅳ. 결론
• 참고문헌
• Abstract

참고문헌 (Reference)

1 홍정선, "행정법원론(상)" 박영사 2010

2 신봉기, "특별행정심판제도에 관한 연구" 경북대학교 산학협력단 2009

3 김기표, "신행정심판법론" 한국법제연구원 2003

4 김기표, "신행정심판법론" 한국법제연구원 2003

5 민주사회를 위한 변호사 모임, "변호사가 풀어주는 노동법Ⅱ" 2008

6 하명호, "노동위원회신청사건에서 국가의 당사자적격에 관한 연구" 노동부 2008

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8 정인섭, "노동분쟁의 특수성과 노동법원의 전문성" 서울대학교노동법연구회 (19) : 01-27, 2005

9 김유성, "노동법Ⅱ" 법문사 2001

10 이철수, "공무원단체 업무매뉴얼"

11 김용섭, "裁決의 羈束力과 主觀的 範圍를 둘러싼 論議" 대한변호사협회 (354) : 209-225, 2006

12 박균성, "行政法論" 博英社 2010