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<일터괴롭힘에 대한 노동법적 접근>
공익인권변호사모임 희망을만드는법
전국불안정노동철폐연대 법률위원회
한국노동안전보건연구소
[차례]
Ⅰ. 서론 ······················································································································1
1. 논의의 배경 ··············································································································1
2. 일터괴롭힘의 정의 및 판단기준 ··················································································2
가. 일터괴롭힘의 정의 ································································································2
나. 판단기준 (규율의 범위 설정 문제) ···········································································5
3. 연구의 목적 및 방향 ·································································································7
Ⅱ. , 일터괴롭힘 행위의 유형과 사례 노동자에게 미치는 영향 ·········································8
1. 일터괴롭힘의 사례와 유형 및 특징 ·············································································8
가. 일터괴롭힘에 관한 사례수집 ··················································································8
나. 괴롭힘 행위 유형 분류 및 사례 검토 ·····································································8
1) 괴롭힘 행위의 유형 ······························································································8
2) 조직적/ 일 관련/ 개인적 괴롭힘 ········································································10
3) 신체적・ 물리적/ 심리적・ 정신적 괴롭힘 ······························································19
4) 직접적・ 공개적/ 간접적・ 은밀한 괴롭힘 ······························································22
다. 괴롭힘 사건의 복합성, 고조성, 지속적 경향 ··························································27
라. 소결 ·················································································································28
2. 일터괴롭힘이 노동자에게 미치는 영향 ·······································································30
가. 일터괴롭힘과 직무스트레스의 연관성 ····································································30
나. 관계 파괴, 자기 파괴로 이어지는 일터괴롭힘 ·······················································33
다. 일터, 노동자의 건강과 생명을 결정하는 중요 요인 ···············································36
Ⅲ. 일터괴롭힘과 관련한 법적 판단기준의 문제 ·····························································37
1. 성적 괴롭힘 사례를 통해 본 일터괴롭힘의 판단원칙 ················································37
가. 성적 괴롭힘 사례를 살펴보는 이유 ······································································37
나. 성적 괴롭힘에 대한 법적 규율 범위 ·····································································37
1) 성적 괴롭힘의 보호법익 ······················································································37
2) 성희롱의 법적 개념 ···························································································38
다. 성적 괴롭힘 행위의 성립요건 ··············································································39
1) 성적으로 의미있는 언동 ······················································································39
2) 성적 굴욕감 또는 혐오감을 유발하는 언동 ···························································42
3) 업무관련성으로 인한 회피불가능성 ······································································43
4) 불법성의 가중 요건 ···························································································47
라. 성적 괴롭힘 행위에 대한 판단기준이 주는 시사점 ················································47
1) 괴롭힘 행위의 유형분류 ······················································································48
2) 괴롭힘 행위의 업무관련성 유무 ···········································································49
3) 직업적 관계 (업무관련성) 로 인한 회피불가능성 ····················································52
4) 사회적으로 괴롭힘이라고 볼 수 있는 언동은 무엇인가 ··········································53
5) 불법성의 가중에 따른 규제방안의 다양화 ·····························································54
2. 일터괴롭힘에 관한 손해배상청구 사례를 통해 본 일터괴롭힘의 판단기준 ····················54
가. 불법행위에 기한 손해배상청구의 일반적 구조 ·······················································54
나. 일터괴롭힘에 관한 손해배상청구 사례를 살펴보는 이유 ·········································56
다. 손해배상청구 사례에서 나타난 일터괴롭힘 판단기준 ··············································57
1) 일터괴롭힘의 불법성 인정 근거는 무엇인가 ··························································57
2) 가해행위의 의도 또는 목적이 필요한가 ································································59
3) 괴롭힘인가 정당한 업무명령인가 ·········································································62
4) 실정법적 근거는 어떤 역할을 하는가 ···································································64
5) 개인의 일탈인가 사용자에게도 책임 있는 문제인가 ··············································65
6) 3 제 자의 괴롭힘에 대해서도 사용자는 책임을 지는가 ·············································67
라. 일터괴롭힘 판단 기준에서의 시사점 ·····································································68
1) 일터괴롭힘의 보호법익 ························································································68
2) 정당한 업무지시와 인사권과의 구별 ·····································································69
3) 성립 요건으로서 의도성 또는 목적성 ···································································71
4) 입증책임의 문제 ·································································································71
5) , 괴롭힘 행위의 연속성 고조성 고려 ·····································································72
6) 사용자의 책임 요건 ····························································································73
Ⅳ. 일터괴롭힘 규율에 관한 법제도 방안 ·····································································74
1. 일터괴롭힘에 대한 법제도적 규율에서의 고려요소 ······················································74
가. 기존 입법 발의안 검토 및 법적 규율에서의 유의점 ···············································74
나. 일터괴롭힘의 개념 ······························································································76
1) 해외 입법례에서의 일터괴롭힘 정의 ·····································································76
2) 일터괴롭힘의 정의 ······························································································79
다. 일터괴롭힘의 판단 기준 ······················································································81
1) 정당한 업무지시 및 인사권과의 구별 ···································································81
2) 반복성, 의도성 ···································································································82
3) 행위 유형별 판단 ·······························································································83
4) 금지 수규자의 범위 ····························································································84
5) 주관적 인식의 고려 ····························································································85
라. 그 외 제도구성시 고려되어야 할 요소 ··································································85
1) 입증책임의 완화 ·································································································85
2) 피해자의 보호 ····································································································86
3) 대응 절차의 수립 및 예방 ···················································································87
마. 법제도적 규율의 의미와 접근 방식 ······································································87
2. 일터에서의 인권(존엄) 보장을 위한 법제도적 방안 ·····················································88
가. 고용정책기본법의 개정을 통한 적대적 노동환경 개선 ············································88
나. 근로기준법 개정을 통한 규율 ··············································································93
1) 괴롭힘에 대한 금지 조항의 신설 (제 8조 2 신설) ····················································93
2) 일터괴롭힘에 관한 장의 신설 (제 6장의 2 신설) ·····················································96
3) 노동자 및 사용자 개념 확장을 통한 사용자 책임의 확장 ······································98
3. 일터 및 사회에서의 노동자의 안전을 위한 법제도적 접근 ········································99
가. 노동자의 안전 및 건강과 인사관리 (현장통제) 의 상관성 ········································99
나. 일터괴롭힘과 노동자의 거부・ 회피권 ··································································100
다. 일터괴롭힘과 현장통제권으로서의 노동자 권리 구성 ············································101
라. 산업안전보건법 및 산업재해보상보험법 개정방안 ···············································102
1) 산업안전보건법 ·······························································································102
2) 산업재해보상보험법 개정방안 검토 ·····································································107
4. 노동자 인권 및 존엄을 위한 정책적 대응 (가이드라인의 제시) ···································109
가. 사회정책적 대응의 필요성 ··················································································109
나. 일터괴롭힘 대응을 위한 가이드라인 구성요소에 대한 제언 ··································110
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