• 사회/정치/법률 > 사회학 > 사회문제

2017/5 사회/정치/법률 86위 | 현재 사회/정치/법률 96위 |

노동은 인격인가, 사물인가? 자유로운 노동자가 어떻게 종속될 수 있는가? 노동법은 이 두 가지 질문을 탐색하는 학문이다. 프랑스뿐만 아니라 전세계적으로 인정받는 저명한 노동법 학자인 알랭 쉬피오는 법학, 사회학, 경제학, 철학, 역사학 등 폭넓은 학문 분야를 넘나들면서 이 질문들을 검토한다. 쉬피오에 의하면, 근대 자본주의 이후 노동은 법의 객체인 사물로 의제되었지만, 노동법은 노동자를 법의 주체로 등장시키면서 노동의 인격성을 보호하고자 한다. 그리고 개별적 차원에서 종속된 노동자들이 집단적 차원에서 자유를 행사할 수 있도록 함으로써 구체적 평등을 추구하는 것이 노동법의 기본 원리이다. 이와 같은 법원리는 사용자의 관할권 아래 놓여 있는 사업을 법의 관할 아래로 재정립한다. 그렇게 해서 사업은 사용자의 일방적 지배가 관철되는 공간이 아니라, 사용자의 사업관할권과 노동자의 노동관할권이 공존하면서 긴장관계를 형성하는 민주적 장소가 된다. 그런데 오늘날에는 이러한 법원리와 그것에 근거하고 있는 노동법이 기업의 경쟁력을 훼손하고 시장의 질서를 침해한다는 비난을 받고 있다. 노동법은 그 정당성을 어디에서 도출하는가? 이 질문은 과학과 기술의 발전에 따라 기술규범, 경영규범 등 새로운 규범 형식들이 대두함에 따라 더욱 첨예한 질문이 되고 있다.

 쉬피오의 󰡔노동법비판󰡕은 1994년 프랑스에서 출판된 책이지만, 이 책이 탐구하고 있는 질문들과 이 책이 해명하고 있는 노동법의 기본 원리들은 오늘날 한국에서도 여전히 유의미한 것이라고 하지 않을 수 없다. 이 책은 노동법에 관한 책이지만 노동법 전공자들만을 위한 책은 아니다. 노동 문제를 어떻게 해결할 것인가? 이 질문에 대한 대답은 어떤 노동을 원하는가, 그 상상력에 달려있다. 그리고 그 새로운 상상력을 잉태하고 탄생시키고자 하는 모든 사람들에게 이 책이 작은 도움이 될 수 있기를 희망한다. 역자는 번역을 하면서 두 가지 선택을 하였다. 첫째, 본문에서는 가급적 원어를 병기하지 않으려 하였다. 비전공자들도 좀더 쉽게 읽을 수 있도록 하기 위해서이다. 둘째, 반대로 각주의 참고문헌은 가능한 한 원어 그대로 표기하고자 하였다. 이것은 전공자들이 참고문헌을 직접 찾아보고자 할 때 길잡이가 될 수 있도록 하기 위해서이다. 그럼에도 불구하고 본문은 읽기 어려울 수 있고, 각주는 친절하지 않을 수 있다. 그것은 역자의 한계로 남겨두고자 한다. 노동법에 관한 책을, 더군다나 프랑스 책을 번역해서 출간한다는 것은 한국의 현실에서는 여간한 결심이 아니고서는 쉽게 실행할 수 있는 일이 아니다. 이 책은 그러한 결심의 가능성을 입증해 주신 도서출판 오래의 황인욱 사장님과 직원 여러분들 덕분에 하나의 작품으로서 (즉 노동의 결실로서) 세상에 나올 수 있었다. 다시 한 번 감사의 말씀을 드린다.

2017년 2월
박제성

목차
서론 노동의 문제
서장 계약과 신분 사이: 유럽의 노동관계에 대한 일고찰
제1절 두 가지 법문화 ·············································································14
제2절 신분이 계약으로 편입되다 ····················································· 31
제3절 새로운 불균형 ··········································································· 39
제1부 인격과 사물
제1장 노동, 법의 객체
제1절 사물의 힘: 재화로서의 노동 ·················································· 54
제2절 신체와 재화: 노동계약의 모호한 목적 ································ 63
제2장 노동자, 법의 주체
제1절 안전 ····························································································· 86
1. 노동에서의 안전 ·································································· 86
2. 노동에 의한 안전 ································································ 94
제2절 정체성 ······················································································· 104
1. 노동에 의한 집단적 정체성 ············································ 109
2. 노동에서의 개별적 정체성 ·············································· 125
제2부 종속과 자유
제3장 집단의 발명
제1절 자발적 종속의 난점들 ·························································· 141
1. 종속 ······················································································ 142
2. 개별적 의사의 자치 ·························································· 147
3. 의사의 종속 ········································································ 152
제2절 집단의 길 ················································································· 158
1. 잃어버린 형제애 ································································ 160
2. 구체적 평등 ········································································ 171
3. 사회적 공서 ········································································ 175
4. 집단적으로 행동할 수 있는 개별적 자유 ···················· 180
제4장 사업의 문명화
제1절 사업 안에서의 자유 ······························································ 194
1. 집단자치의 영역 ································································ 194
2. 개별적 자치의 영역 ·························································· 204
제2절 사업과 법 ················································································· 216
1. 법의 원천으로서의 사업 ·················································· 217
2. 법의 객체로서의 사업 ······················································ 226
제3부 법률과 규범
제5장 법에 대한 소송 제기
제1절 노동에서의 합법성 ································································· 242
1. 노동법과 사회적 사실 ······················································ 242
2. 노동법과 법적 합리성 ······················································ 248
제2절 입법화에 대한 비판들 ·························································· 255
1. 법에 대한 비판 ·································································· 255
2. 사회정의에 대한 비판 ······················································ 262
제3절 규범의 유혹 ············································································· 271
1. 법규칙과 경제규범 ···························································· 272
2. 법적 합리성의 한계들 ······················································ 281
제6장 규범의 형상들
제1절 기술규범 : 노동법과 유럽식 규범화 ································· 293
1. 준거규범 ·············································································· 295
2. 법규칙과 기술규범의 구분 ·············································· 300
제2절 행위규범: ‘인적 자원’의 규범화 ·········································· 307
제3절 경영규범 ··················································································· 315
1. 새로운 전문가들의 완전지(完全知) ································ 317
2. 전문가 의뢰의 규범적 기능 ············································ 322
결론
1. 노동의 미래 ···················································································· 327
2. 법학자의 일 ···················································································· 335