근로3권에 대한 헌법재판소 판례의 검토

Abstract

Even though the Workers' Fundamental Rights(WFR) are prescribed by the

Constitutional Law, in order to guarantee the effectiveness of WFR in realty,

the prerequisite conditions such as democratic political system, economic

growth, freedom of labor movement, judicial fairness etc. should be

established. To protect the constitutional human rights, it's a crucial promising

step to establish the Constitutional Court(CC) by the Korean Constitutional

Law of 1987 year.

This Article attempts to review of the precedents of CC on WFR for nearly

10 years, and to examine the function and contribution of CC in enhancing

especially the effectiveness of WFR. In order to achieve this goal, the Article

analyses the legal reasoning and basic legal principles of the precedents of CC

on WFR by the labor-sociological method.

The author points out that emphasizing the social right in nature of WFR

by CC is resulted in aiming at restrictions of the effectiveness of WFR, rather

than at ensuring of it. He argues that basic legal principles of CC such as

legislative discretion theory, compensatory alternatives theory and public

interests theory are consequently contributed as reasonable excuse to make a

decision of the constitutionality of problematic Act restricting WFR.

The author further underscores that the functions of CC in actual guaranteing

the effectiveness of WFR would have limitations due to judicial passivism or

negative attitude and intentional ignorance to historical understanding on the

dynamic socio-economic changes in reality, comparing with labor's demanding

voice substantially having influence on the government-oriented legislation

ensuring WFR after decisons of CC.