공무원의 정치적 중립의무 비판 - 미국 공무원법제와의 비교법적 고찰 / 임재홍

[국문 주제어]

정치적 권리, 중립의무, 해치법

Critical Comment on Political Neutrality of the Public Officials
- Comparative Analysis with the Hatch Act in America -

Lim, Chae-Hong
Professor, Yeungnam Univ.

Members of the Korean Government Employee's Union(KGEU) announced their support for the Democratic Labor Party in the April 15 2004 general election at a press conference in Yoido, Seoul.
A controversy has erupted with the ongoing dispute over the political neutrality of government employees as unionized public servants on Tuesday announced their support for a political party advocating workers󰡑rights. The move by the KGEU conflicts with the Constitutional Court's decision that public servants should remain neutral in politics, as well as with government policy, and thus risks punitive measures being taken against them.
The arrest of the involved public officials came right after the Seoul Central District Court issued an arrest warrant for them, allegedly because they led the union's political engagement ahead of the April 15 elections. The arrest followed a government warning that public employees who were found to have been involved in illegal campaigning would be subject to stern punishment.
'The National Public Officials laws ban public workers from involving in political campaigns, but it doesn't necessarily mean that we can't express our political opinions,' KGEU said in a statement after an emergency meeting.
In a similar case, United States District Court stated, "when the strictures of the Hatch Act and the First Amendment seems to conflict it was the aim of the Congress that the Act be construed in favor of free expression", so "the statutory prohibition against taking an 'active part in political management or in political campaigns' encompasses only active participation in, on behalf of, or in connection with, the organized efforts of political parties, clubs, and candidates"(Blaylock v. Merit System Protection Board, 851 F.2d 1348(11th Cir. 1988) at 1354).
Also in Biller case, the court said, "Finding 'partisan activity' implicitly requires a nexus between the government employee and the effort to promote the political party or elect its candidate(Biller v. Merit System Protection Board, 863 F. 2d 1079(2d Cir. 1988) at 1090).
In October of 1993, legislation which substancially amended the Hatch Act was signed into law. the Hatch Act Amendsments of 1993 permit most federal employees to take an active part in partisan political management and partisan political campaigns. While federal employees are still prohibited from seeking public office in partisan election, most employees are free to work, while off duty, on the partisan campaigns of candidates of their choices.
For more than a half century the idea that public officials should not be involved in a partisan politics has been a fundermental civil service feature. This concept of neutrality was formalized in the Public Officials Acts and the National election Act. An underlying rationale for this idea is that efficiency in government service requires a lack of partisanship in administration.
In my opinion the public officials as private citizen enjoy political rights, therefore their participation in political management and political campaign should be guaranteed.

[Key Words]

Political right,  Political Neutrality, the Hatch Act