노동조합법은 행정관청에 의한 노동조합 심사 제도를 두고 있다. 현행 노조심사제도는 설립신고 시점에서의 심사(사전 심사)와 신고증 교부 후의 심사(사후 심사)를 함께 규정한 상시 심사제도이고, 행정관청에 의한 심사이며, 나아가 심사 대상이 설립신고서와 규약의 기재 사항뿐만 아니라 노동조합의 결격 요건에 관해서까지 심사할 수 있도록 한 점 등에 특징이 있다. 이러한 노조심사제도가 자유설립주의를 근간으로 하는 단결권 보장에 합치하려면, ① 설립신고의 목적은 노동조합에 관한 정보의 외부 공개로 한정되어야 하고, ② 행정관청의 심사는 엄격하게 제한된 대상에 대한 형식적인 것으로 하여야 하며, 또한 ③ 신고의 효과 혹은 신고증 교부의 법적 효과는 노동조합으로서 활동하는데 큰 장애가 되지 않는 것들과만 연결시켜야 한다. 그런데 현재의 법령이나 관련 판례의 해석을 통해서는 이러한 요건들을 충족시키기가 어렵기 때문에 ``현행`` 노조심사제도는 ``위헌적``이다.
This paper aims to examine whether or not the existing system concerning with trade union registration in Korea is compatible with international labour standard, the principle of freedom of association which contains the right to establish organisation "without previous authorisation". The trade union registration system in Korea is regulated by the 「Trade Union and Labor Relations Act」(hereafter ``TULRA``) and by 「Enforcement Decree of TULRA」(hereafter ``Enforcement Decree``). The important provisions concerning with trade union registration are as followings; (1) A person who intends to establish a trade union shall prepare a report containing the matters described under the TULRA; (2) Administrative Authorities should issue a certificate within three days in principle after receiving the report on establishment; (3) In cases where a report or by-laws need to be supplemented because of any omission or other reasons, the Administrative Authorities shall order a supplement thereof by designating a submission period up to twenty days; (4) The Administrative Authorities shall return a report filed in cases where a trade union which made the report falls under the purview of any of the following subparagraphs: 1. Where a trade union falls within the categories of each subparagraph 4 of Article 2 of the TULRA. 2. Where supplements are not submitted within the designated period in spite of the order to supplement a report in accordance with the provisions of the TULRA; (5) Where, after a trade union is delivered with a certificate of report of establishment, there arise reasons for returning the written report of establishment, the Administrative Authorities shall demand correction within the specified period of thirty days, and if the correction is not performed within this period, they shall notify the trade union in question that it shall not be regarded as a trade union as provided for under the TULRA(article 9 of Enforcement Decree). According to international labour standard, especially Convention No. 87 of ILO, the principle of freedom of association would be a dead letter if workers were required to obtain any kind of previous authorisation to enable them to establish a trade union. This does not mean that the founders of a trade union are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. However, such requirements must not be such as to equivalent in practice to previous authorisation, or as to constitute such an obstacle to the establishment of a trade union that they amount in practice to outright prohibition. Concerning with the principle "without previous authorisation", the Governing Body committee on Freedom of Association(CFA) has continuously emphasized on the facts as followings; (1) the registration procedure should consist in a mere formality in order to provide a publicity or to collect an normal information; (2) the requirements for registration should be compatible with the principle of freedom of association; (3) legislation should clearly define the precise conditions that trade unions have to fulfil in order to be registered or for a registrar to refuse or cancel registration and should contain explicit criteria for determining whether or not an organisation meets the conditions; (4) a law providing that the right of association is subject to authorisation granted by a government department purely in its discretion is incompatible with the principle of freedom of association; (5) the registration procedure should not be long and complicated; (6) normal control of the activities of trade unions should be effected a posteriori and by the judicial authorities. Comparing existing system for trade union registration in Korea with the principle of freedom of association in international labour standard, some provisions concerned should be amended or repealed as followings; (1) The article 9 of Enforcement Decree must be repealed, because it is contrary to the principle of international labour standard that the registration procedure should consist in a mere formality in order to provide a publicity or to collect an normal information; (2) At the Examination of the Administrative Authorities for the issuance of a certificate, the two negative requirements for establishment of a trade union, the first provision and the fourth provision of Article 2(4) of the TULRA, shall be amended or repealed because they are not compatible with the principle of freedom of association; (3) Although registration is optional, such registration should not confer on the organisation the basic rights enabling it to "further and defend the interests of its members". In this point, Article 7(3) of the TULRA which prohibits using of the term ``trade union`` except for having a certificate of trade union by the Administrative Authorities.
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