The essential raison d'être of the state ultimately lies in guaranteeing the fundamental rights of its people. Among these basic rights, the basic right to labor is a key right for realizing human dignity and values, and for the healthy operation and...
The essential raison d'être of the state ultimately lies in guaranteeing the fundamental rights of its people. Among these basic rights, the basic right to labor is a key right for realizing human dignity and values, and for the healthy operation and maintenance of a democratic society. Since Articles 32 and 33 of our Constitution stipulate the right to work and the basic labor rights of the three labor rights, the active role and responsibility of the state are needed to protect them. The problem is that since the establishment of the current constitutional system in 1987, the reality of labor has undergone fundamental changes through neoliberal restructuring, labor market flexibility, the Fourth Industrial Revolution and the transition to the digital economy. As a result, although many 'working people' are actually economically subordinated under the command and supervision of the employer, basic labor rights are not protected due to legal restrictions. What is more problematic is that in order to reduce trade union activities, some employers are likely to punish the three basic labor rights by abusing large claims for damages and seizure.
Recently, so-called Yellow Envelope Act legislation has been actively discussed in our society to expand the concept of workers and employers under the Trade Union Act to fit reality, expand the scope of legitimate industrial actions, and limit liability for damages for illegal industrial actions. However, this bill did not reach legislation by causing sharp constitutional issues such as conflict with other basic rights such as the user's property rights, the issue of consistency with the existing legal order, and controversy over the violation of the rule of law. With this awareness of the problem, this study examined the constitutional legitimacy of the Yellow Envelope Act by making the main issues of the legislation of the Yellow Envelope Act an important subject of research on basic labor rights. First of all, through theoretical consideration, it was argued that the basic labor right is a specific right as an integrated basic right accompanied by the state's obligation to actively protect. In addition, it emphasized the importance of international norms on basic labor rights and compliance with the ILO Convention, and suggested the need to expand discussions through comparative legal review. The Yellow Envelope Act proposed by the 21st and 22nd National Assembly passed the plenary session twice, but both times it was canceled due to the president's exercise of the right to request reconsideration, and discussions are expected to take place again in recent years.
In this study, the main issues of the 22nd National Assembly alternative among the yellow envelope bills were reviewed constitutionally. As a result, first, expanding the scope of worker membership through the revision of the labor union definition regulations in Article 2 of the Trade Union Act had room to secure constitutional legitimacy in the relationship between the interpretation of Article 33 of the Constitution, the scope of the right to form legislation, and the freedom of association under the Constitution and international standards. Second, there is an opinion that including users who exercise substantial control in the scope of users violates the principle of clarity and violates contract freedom, but when confirming the position of constitutional interpretation theory, the importance of protecting the three basic labor rights, and the legal principles of precedents, it was difficult to see this as a constitutional interpretation. However, it was argued that it was necessary to reasonably set the scope of responsibility according to the authority exercised by the employer, and that it was essential to reorganize related systems such as a single bargaining window. Third, expanding the subject of legitimate labor disputes was considered a constitutional reasonable measure when considering the conflict with management rights and consistency with the purpose of improving working conditions under Article 33 of the Constitution, but it was argued that an approach to more clearly define this was needed to minimize labor-management conflict. Fourth, among the restrictions on liability for damages for illegal industrial actions in the amendment to Article 3 of the Trade Union Act, it was argued that the provisions that individualize workers' responsibilities have constitutional elements when considering the specificity of the exercise of the three basic labor rights, the possibility of conformity with the constitutional principle of self-responsibility, and the possibility of limiting liability through Supreme Court precedents. However, in consideration of the possibility of infringement of the user's property rights, it was argued that it was necessary to clarify the limit of acceptance so as not to lead to special damage to the user. On the other hand, the provisions to comprehensively expand the scope of immunity of labor unions by newly establishing Article 3-2 of the Trade Union Act were judged to be unconstitutional because there is a possibility of violating the principle of clarity and abuse of rights.
Based on these discussions on the legislation of the Yellow Envelope Act, it is desirable to expand the scope of recognition of workers in the short term and establish a legislative system of protection for each type according to the characteristics of labor provision in the mid to long term. In addition, even though the concept of an employer is expanded, it is necessary to specify the criteria for judgment and reasonably establish it to fit the authority to exercise the scope of the employer's responsibility. In addition, it was suggested that it is essential to comprehensively reorganize the overall related labor relations laws, such as the single bargaining window system, the worker representation system, and the regulation of unfair labor practices, in conjunction with the revision of Articles 2 and 3 of the Trade Union Act. In order to reasonably limit liability for damages caused by collective action, the principle of individualization of responsibility should be carefully legislated by reflecting the purpose of the Supreme Court judgment, but it should be reviewed on the premise of social consensus. However, it was judged that provisions that excessively expand the scope of immunity should be avoided because they lack constitutional legitimacy. In addition, it was argued that the fundamental direction of the guarantee of collective action is to reduce the scope of illegal industrial actions by reasonably re-establishing the criteria for judging the legitimacy of industrial actions. In addition, it was suggested that a strategic containment lawsuit prevention device is systematically essential to prevent the abuse of lawsuits for damages for industrial actions. Finally, it was suggested that in order to resolve labor-related disputes quickly and fairly, efforts should be made to strengthen the coordination and arbitration function of the Labor Relations Commission, and to strengthen expertise and to receive prompt trials in the long run by establishing an independent labor court. In order to substantially protect basic labor rights by resolving the issues surrounding the legislation of the Yellow Envelope Act, sufficient constitutional consideration must be preceded, social dialogue and political consensus efforts must be premised, and further extensive interdisciplinary follow-up research is also needed.