공무원의 노동3권에 관한 법적 쟁점과 개선 방안 = A Study on the Legal Issue of the Three Basic Labor Rights of Public Officials' and Constitutional Remedies

다국어 초록 (Multilingual Abstract)

The Korean government has presidential system, while the Japanese, parliamentary cabinet system. The weak point of parliamentary cabinet system is that it can have a short span of life of even less than a year. Therefore the government is subject to political unrest. But it is thanks to the undisturbed bureaucracy from the politics that Japan can go along well. As we all know, the bureaucracy is composed of career civil servants.
This article examines three issues involving the so-called Labor Union of Government Officials in three points: ① Can we recognize government officials as laborers? ② If so, what can be the issues in the present Labor Union Act of government officials, ③ When we find the issues in it, what are alternative solutions to them? We should solve the question that government officials can be laborers before we discuss the laborer's three primary rights: the right to organize, the right of collective bargaining, and the right of collective action. When we include the government officials in the general laborers, we should naturally allow them the same three rights. But we cannot readily accept the fact because we distinguish the government officials from the other general laborers with the following three reasons: ① The government officials, as civil servants, have the distinctive character of public service. ② They have their own special roles as civil servants. and ③ Their relationship with the employers is different from that of general laborers because the final employers of government officials are the citizens.
In the first half of this article, the three primary rights are examined and in the latter half, it is dealt with how the three primary rights can be changed when we recognize the government officials as the same laborers as the general.
First, the issues on the legislation process of government officials' labor union act
Second, the issues on the narrow confinement of the government officials' activity participation
Third, the most controversial issues on the limited right of collective action
Fourth, the issues that the labor's three primary rights of government officials are, in effect, 1.5 rights
Fifth, the issues on the treatment for the former laborers

This article is composed of 6 chapters, and each deals with the followings.
In the second chapter, we examine the definition of the labor's three primary rights. Through this, the legal status of government officials and the relationship between the employ and the employed are redefined. The unique character in the relationship between the employer and the employed in the case of government officials is disclosed through the thorough examination of various resources. In the second section, we examine the different views on the basic labor rights of government officials in foreign countries.

In the third chapter, we examine the labor's three primary rights and the labor union acts for the government officials in England, USA, France, Germany, Japan and compare them with ILO's standard for the labor rights for the government officials. In the second section, we investigate how the Korean labor laws have developed through various materials, and compare them with the present labor laws, and we can find the differences among them, improvements and alternative solutions.

In the fourth chapter, we examine the security system in the government officials' labor primary rights and its problems and improvements. In the first section, we examine the laws and the regulations on the foundation and management of government officials' union. In the second section, we examine the problems and alternative answers for the laws on the foundation and management of the government officials' workplace conference.

In the fifth chapter, we try to find the possible answer to put effectively into force the present three labor primary rights for government officials, and to guarantee and expand the right to organize and the right of collective bargaining within and beyond the present labor laws.

In the sixth chapter, we examine what the three primary labor rights through advance research. In the second section, we examine whether we allow the government officials the rights of labor. In the third section, we examine and compare the different views on the legal limits of government officials' activity among foreign countries.

In conclusion, we suggest that the current government official labor laws be developed for the better to fit the present Korean situation and to materialize the fundamental spirits and ideals of Constitution through detailed, wide and deep discussion on the problems of the present labor laws of government official laws.

목차 (Table of Contents)

• 제Ⅰ장 서론 1
• 제1절 연구의 배경과 목적 1
• 제2절 연구방법과 연구범위 4
• 제Ⅱ장 공무원의 노동3권의 기본구조
• 제1절 공무원의 의의 7
• 1. 공무원의 의의 7
• 2. 공무원의 종류 7
• 제2절 공무원의 노동3권 9
• 1. 공무원의 근로자성 9
• 2. 공무원의 특수성 12
• 3. 공무원의 기초개념 16
• 4. 공무원 노동기본권의 제한 19
• 제Ⅲ장 공무원의 노동3권에 대한 비교법적 고찰 24
• 제1절 공무원 노동3권과 ILO 24
• 1. 공무원 노동3권에 대한 국가별 인식비교 24
• 2. ILO기준과 회원국의 비교 26
• 제2절 국가별 노동3권과 입법사례 28
• 1. 미국 28
• 2. 독일 33
• 3. 일본 37
• 4. 한국 44
• 제Ⅳ장 공무원 노동3권에 관한 법적 쟁점 53
• 제1절 공무원 노동3권 보장제도 개괄 54
• 1. 시대별 한국의 노동3권 보장제도 54
• 2. 공무원 노동3권에 대한 입법 활동 61
• 제2절 공무원 노동3권을 둘러싼 법률적 쟁점 66
• 1. 공무원 직장협의회의 설립 및 운영에 관한 법률 66
• 2. 공무원의 노동조합 설립 및 운영 등에 관한 법률 71
• 제3절 공무원 노사관계에 대한 최근의 쟁점 82
• 1. 공무원노조법의 제정과 갈등 82
• 2. 입법과정에서의 갈등의 요인 82
• 3. 공무원노조의 가입범위를 둘러싼 갈등 83
• 4. 단체교섭 및 단체협약의 제한을 둘러싼 갈등 84
• 5. 공무원노조의 쟁의행위 금지를 둘러싼 갈등 84
• 제Ⅴ장 한국의 공무원 노동3권 보장을 위한 개선방안 86
• 제1절 법적인 개선방안 86
• 1. 단결권 보장 방안 86
• 2. 단체교섭권 확대 방안 88
• 3. 단체행동권 정착 방안 90
• 4. 입법과정의 투명성 92
• 제2절 사회적인 개선방안 93
• 1. 노동3권에 대한 대중인식 변화 유도 93
• 2. 공무원노동조합의 활성화 94
• 3. 고용자와 근로자 상호 협력관계 구축 95
• ※【 참 고 문 헌 】 102