쟁의행위와 민사책임에 관한 영국법리

A review on industrial action and civil responsibility in Britain might have a lot of implications on the urgent labour law reforms in Korea. It shows that a right to strike or freedom of strike could be easily restricted by strict interpretations of the court owing to the legal form such as passive statutory immunities, not based on the rights. There always remain problems in the legal structure or legal reasoning like that strikes and other forms of industrial actions are illegal in principle, subject to tortuous liabilities at common law, but can be just justified exceptionally by the legislation. Trade unions in Britain trying to obtain the freedom to strike have coped with the situation in the way of immunities from common law liabilities which are known to exist at the time the legislation is passed. This approach has been frustrated each time by new heads of tortuous liabilities invented by the courts. It is obvious that a rights-based approach is helpful to overcome the problems with a immunity-based approach. The immunity from civil responsibility implies only historical development of the freedom to strike. It doesn't seems compatible with modern labour law. The language of immunity necessarily invites a restrictive and strict interpretation of its terms. A positive rights-based approach is thus required instead of a passive immunity-based approach to protect and realize the right to collective actions of the Constitution in Korea. A right to industrial action originally has a character as a liberty from the state and employer and its essential consists in the concerted stoppage of labours which belong to the workers. The concerted stoppage of labours itself, the sole weapon that the workers have, should not be therefore liable to the employer in tort or any other ground. Then, it seems unnecessary and impossible to define positively in the legislation what is meant by a strike or industrial action. The exercise of a right to industrial action, like other rights, could be restricted if appropriate, within defined limit and only by the legislation. But the exercise of a right to strike and to engage in other industrial actions should not be regarded basically as illegal actions in breach of employment contracts nor subject to tortuous liabilities. Individual workers who take part in strikes or other industrial actions and the trade unions or union officials who organize those should not be liable to the employer in tort.