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Reexamination of Duty of Political Neutrality as Restricted Evidence concerning Freedom of Expression of Public Officials - Using Legislative Examples of Japan and Constitutionality of Article 3 (2) of the State Public Officials Service Regulations as Writing Material -
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공무원의 표현의 자유의 제한 근거로서 정치적 중립의무의 재조명- 일본 사례와 공무원 복무규정 제3조 제2항의 합헌성을 글감으로 하여 -

논문 기본 정보

Type
Academic journal
Author
YI HYE JIN (안동대학교)
Journal
한국국가법학회 국가법연구 국가법연구 제18권 제1호 KCI Accredited Journals
Published
2022.2
Pages
1 - 29 (29page)
DOI
https://doi.org/10.46751/nplak.2022.18.1.1

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Reexamination of Duty of Political Neutrality as Restricted Evidence concerning Freedom of Expression of Public Officials - Using Legislative Examples of Japan and Constitutionality of Article 3 (2) of the State Public Officials Service Regulations as Writing Material -
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For public officials, sometimes the obligation to maintain neutrality or dignity becomes the reason for limitation on freedom of expression. Especially freedom of expression ranges across the various spectrums from one that is extremely politically biased to one that isn't; if political neutrality comes in as a medium, it complicates the discussion whether it is a case of limitation on political rights or a matter of dignity maintenance duty. That is, although the cases where the dignity maintenance duty becomes a matter regarding freedom of political expression, ambiguous cases whether there were political activities involved such as criticism of one’s superior or national program, and cases related to general freedom of expression which should be differentiated with the former cases all exist with the various spectrum, without clear distinction, ‘freedom of expression of public officials’ has been judged under a single standard, saying ‘As workers for the public, political activity of civil servants is limited’. This paper finds the cause of the confusion here. Having a single standard for its application has brought the consequence where all the political expression of public officials is denied except for the right to vote, finally causing the denial of freedom of belief and conscience. This paper examines the connection between political right and neutrality once again in comparison to the similar legislative examples of Japan, ruminating on the meaning of neutrality in the cases for general public officials as opposed to political service and reappraised the verdict of the constitutional court regarding the constitutionality of Korea’s ‘article 3 (2) of the State Public Officials Service Regulations’. This paper interprets securing the trust of the public as well as efficient execution of official duties as the ground for justification of concluding political neutrality of general public officials from the constitutional article for political neutrality to be guaranteed. However, the guarantee of securing trust and efficient execution of official duties doesn’t provide direct relevance to political rights that the constitution and National Public Service Law essentially limit. Furthermore, when providing these as the restricted evidence for freedom of political expression, simply considering ‘concern’ to be the basis that such benefit of law could be invaded, e.g., the concern of losing credibility in execution by the public, should not be done and thorough examination as to whether further obstruction occurred must be followed.

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