Case Jurisprudence on the Justifiability of Industrial Actions

Abstract

The Constitution of the Republic of Korea guarantees three labor rights, the right to organize, the right to bargain collectively and the right to take a collective action as fundamental rights, and these basic labor rights are materialized in the Trade Union and Labor Relations Adjustment Act(TULRAA).

Considering that the TULRAA includes excessive restrictions on industrial actions and many provisions on criminal punishment, however, it is doubtful whether the TULRAA is designed to substantially protect basic labor rights or it is only to regulate industrial actions.

Moreover, although taking an industrial action is the legitimate exercise of fundamental rights laid down in the Constitution, the court of the Republic of Korea requires that laborers abide by strict criteria for the justifiability of an industrial action in the respect of its entity, purpose, procedure, and methods and

means. If the concerned industrial action fails to fulfill the foregoing criteria, its justifiability comes to be forfeited and thereupon those who led or joined the action are to assume civil, criminal, and/or

disciplinary responsibility. Since the Republic of Korea carries out a labor policy that is oriented only toward criminal punishment, it is the reality that a person who plans to be a union leader is prepared to

be subject to imprisonment.

Recently there have been many court rulings on the justifiability of industrial actions, and, at the same time, there have been heated debates on the validity of those rulings. One of the issues was whether the industrial actions are justifiable which were taken with the object of resisting massive lay-offs that had been done in the process of structural adjustment after the financial crisis at the end of 1997. Another issue was whether it is proper to inflict criminal punishment for failing to observe procedural requirements on industrial actions. Particularly, even in the cases of the negative type of strikes such as

just rejecting to offering labor, many of union leaders were punished under the Criminal Code despite that the concerned action had no additional unlawful factors. This incurred severe criticism and censure

from the international community as well as from the domestic society.

This paper examined recent case laws from the court of the Republic of Korea regarding the justifiability of industrial actions. This paper also looked into the definitions of a labor dispute and an industrial action

stipulated in the TULRAA and gave concrete consideration to the issue of justifiability in the respect of the following four aspects.