선거규제의 불명확성에 대한 검토 － 공직선거법의 공무원에 대한 중립의무규정들을 중심으로 －

Abstract

There have been criticisms alleging the overbreadth or excessiveness of restrictions on political activities placed by the Public Official Election Act(POEA). The question of vagueness also arose with some terms such as "election campaign" on which POEA impose various limitations. This article looks into vagueness problems of POEA prohibitions against public employees' activities which are not deemed neutral with respect to a public election. Although the National Public Service Law and the Local Public Service Law place restrictions on public employees‘ political activities, specified public officials in political service are excepted from those restrictions. On the other hand, such officials other than members of the National Assembly or local councils are not excepted from many restrictions on political activities in POEA. Prohibited activities include, (1) taking part in an election campaign (section 58(1)); using official authority or influence in connection with an election campaign (section 85(1)); taking part in classified political activities such as "election planning"(section 86(1)). According to the interpretation of the Constitutional Court, section9(1) prohibition against "those activities that affect outcome of an election" also applies to all public employees and officials(but members of the National Assembly or local councils). The Court held that the definition of banned activities in section 9(1) was not unconstitutionally vague, and the same court also held that "the ban on participating in election planning is unconstitutional in so far as he does not use his authority or official influence", in another case. Partisan political activities by government employees must be limited if the Government is to operate effectively, the laws are executed impartially, or elections are to be carried out fairly. However, proscriptions against taking part in political activities have to be more narrowly tailored with respect to group of positions involving authorities or duties of different nature. The definition of banned activities in section 9 (1), among others, is impermissibly vague when the provision is applied to officials in policy- making positions. The problem with such vagueness is that public policy decisions have to be based on transparency, openness and participation. Unclear ban on wide range of activities including expressions on public issues could have undesirable chilling effect on legitimate policy-making process.