노동조합 명칭사용금지위반죄에 대한 형법이론적 검토 -헌법재판소 2008.7.31. 2004헌바9 결정을 중심으로- = A Criminal Law`s Theoretical Study on Breach of Use the Term ``Labor Union``

다국어 초록 (Multilingual Abstract)

A breach of use the term ``labor union`` punishes workers` organizations violating the Labor[Trade] Union Act against for 3st Section of Article 7. In 2008, the Constitutional Court ruled that 3st Section of Article 7 of the Labor[Trade] Union Act was not against for 2st Section of Article 37 of the Constitution, so it is constitutional. After that, in 2012, the Constitutional Court also ruled that 3st Section of Article 12 of the Labor[Trade] Union Act was not against for 1st Section of Article 33 of the Constitution. The former is related to the legal force of the labor union`s establishment, while the latter is related to the requirement for establishment. An analysis of Constitutional Court`s decisions and Supreme Court`s precedents shows that the principle of report has changed over to permit system as a result of a substantial examination by the executive authorities. So requisites for a criminal law making use the term ``labor union`` is used to arbitrary by discretionary decisions of administrations. And, in 2008 and 2012, an analysis of Constitutional Court`s argumentation with the suitability principle, subsidiarity principle, balance principle shows that the effectiveness of the Labor[Trade] Union Act 3st Section of Article 7 is being questioned. In this situations, to punish outsider union for using the term ``labor union`` infringes upon the right to organize of the worker for the benefit of administrations. Therefore, even when the principle of report stay in formal examination by administrations, a breach of use the term ``labor union`` should be removed from the Act.