군인의 정치적 기본권 제한에 관한 비교법적 연구

Abstract

The Korean Constitution ‘guarantees’ the status and political neutrality of professional civil servants as ‘volunteers to the people’. However, in the case of the ROK military, it goes one step further and proclaims that political neutrality must be ‘observed’. This emphasis is considered convincing considering the constitutional history of the Republic of Korea, where soldiers intervened in politics and usurped the regime in the past. However, as the value of observing the military’s political neutrality obligations has been excessively sanctuaryized, it is believed that there has been a lack of detailed discussion on the extent and content of the compliance of the ROK military’s political neutrality stipulated in the Constitution through restrictions on basic political rights. It is believed that political neutrality should be remanded in terms of scope and content to the extent that it goes beyond the limits of the general principles of limiting basic rights under Article 37 (2) of the Constitution, and unless it is a constitutional request that the basic political rights of soldiers be restricted to the widest extent possible. Basic political rights include not only the freedom to express political opinions, but also the right to participate in internal decision-making within the organization, that is, the right to participate. The right to participate of soldiers needs to be guaranteed not only for solving the challenges of the times at hand and for the formation of a healthy organizational culture, but also for comparison with the legal system of other countries. However, the areas and scope in which the right to participate can be guaranteed should be limited to those that do not impede the critical public interest of ‘protecting the lives and property of the people through the maintenance and exercise of national defense power’.