공무원의 정당 후원회 기부 금지에 관한 헌법적 정당성 검토

Abstract

In the Constitution of the Republic of Korea, political neutrality is repeatedly stipulated as a value in the Armed Force, public officials, and education sectors. It is believed that various laws concretely realize the constitutional requirement. In practice, public officials and others are broadly prohibited from joining political parties, political organizations, or supporters’ associations, as well as from making financial contributions. This is explained as being justified on the basis of political neutrality under the Constitution. However, despite its importance, the concept of political neutrality has not been fully analyzed due to its conceptual abstraction, ambiguity, and multiple interpretations. This study focuses on the freedom to support, which has not been sufficiently discussed compared to the issue of party membership. Political contributions are essential and significant in that they are a source of available resources and motivation for parties, and they embody identity and freedom of expression for supporters. Since political parties and supporters’ associations, party members and supporters, as well as joining and supporting them, have clear differences in legal definitions and nature, it is rational that the restrictions applied to them are different. Joining a political party represents a higher level of political activity, whereas joining a supporters’ association is relatively minor. Therefore, while it is prohibited to join multiple parties, supporting multiple parties(or joining multiple supporters’ associations) is allowed. However, current laws, official opinions of the Ministry of Government Legislation, and decisions of the Constitutional Court sometimes fail to consider these differences adequately and contain internal contradictions. This study examines the distribution of opinions among judges through a comparison of decisions to assess whether proportionality is being appropriately observed. In particular, the opinion of the Ministry of Government Legislation, which prohibits civil servants from contributing money to supporters’ associations for political parties based on the State Public Officials Service Regulations (Enforcement Decree of the State Public Officials Act), clearly needs to be pointed out as violating the decisions of the Constitutional Court. The decision's intent, stating that “excluding the central party from the designation authority of supporters' association infringes on the freedom of political expression of civil servants who are prohibited from joining a party, by depriving them of the right to financially support the party they endorse,” is directly violated by the opinion of the government. Furthermore, under the Political Funds Act, a supporter includes both members and non-members. Therefore, the possibility of supporting financially without joining a supporters’ association or anonymously is already institutionally feasible. A careful review is needed on whether it is necessary to prohibit even the lowest level of such supporting activities for civil servants.