[26-1(A) KCCR 375, 2011Hun-Ba42, March 27, 2014]

In this case, the Constitutional Court held the part of ‘a public official under Article 2 of the State Public Official Act who becomes a member of a political party in violation of the main sentence of Item 1 of Proviso of Section 1 of Article 22’ of Article 53 of the former Political Parties Act and the part of ‘a person in violation of the part of joining a political party of Article 65 Section 1’ of Article 84 of the former State Public Official Act do not violate the principle against excessive restriction and principle of equality; and the part of ‘a person in violation of the scope of a political activity prohibited by the Presidential Decree’ of Article 84 of the former State Public Official Act does not violate the principle of void for vagueness under the principle of nulla poena sine lege and principle of ban on comprehensive authorization.

Introduction of Case

(1) Petitioners work for elementary schools or secondary schools as teachers after the appointment as a national or public school teacher, belonging to a state public official.

(2) Petitioners, who allegedly joined and contributed to the Democratic Labor Party, were charged with the violation of the Political Parties Act and the State Public Official Act, prohibiting a state public official from joining a political party as well as the violation of the State Public Official Act, regulating the scope of a political activity of a state public official on May 6, 2010.

(3) Petitioners filed a motion to request a constitutional review of the aforementioned provisions, which was eventually denied, while the criminal procedure is pending. Subsequently, the petitioners filed this constitutional complaint on February 24, 2011.

Provision at Issue

The subject matter of review is the constitutionality of the part of ‘a public official under Article 2 of the State Public Official Act who becomes a member of a political party in violation of the main sentence of Item 1 of Proviso of Section 1 of Article 22’ of Article 53 of the former Political Parties Act; the part of ‘a person in violation of the part of joining a political party of Article 65 Section 1’ of Article 84 of the former State Public Official Act (hereinafter, theses provisions are referred to as ‘the provision to forbid from joining a political party’; and the part of ‘a person in violation of the scope of a political activity prohibited by the Presidential Decree’ of Article 84 of the former State Public Official Act (hereinafter, this provision is referred to as ‘the provision regulating a political activity’).

Summary of Decision

A. Constitutionality of the provision to forbid from joining a political party

(1) Principle against excessive restriction

The provision to forbid joining a political party has a legitimate legislative purpose in that it protects the political neutrality for public officials to perform official duties with sincerity and promotes the neutrality of education for elementary or secondary school teachers to prevent any effect of partisan interests. Because a political party, affecting the formation of political opinion of the people, is especially protected by the Constitution, the ban on public officials’ joining a political party is an appropriate means to achieve the aforementioned legislative purpose.

The provision to forbid joining a political party simply prohibits public officials from ‘being a member of a political party’, whereas it permits public officials’ political activities in a limited scope, including the

expression of supports for a political party, regardless of election, in personal situations and voting at elections: Therefore, it does not violate the principle of the least restriction. The public interests to promote the political neutrality and right to education for elementary and secondary school students exceed the restricted private interests of public officials, complying with the principle of balance of interests.

(2) Principle of equality

The provision to forbid joining a political party bans elementary and secondary school teachers from being a member of a political party, whereas it allows university faculty to join a political party. Nonetheless, it is a reasonable discrimination under the comprehensive considerations of nature and contents of their works in knowledge transmission, research, etc., and working environments. Therefore, it does not violate the principle of equality.

B. Constitutionality of the provision regulating a political activity

(1) The comprehensive understandings on the penal provision of the provision regulating a political activity, Article 65 Section 4 of the former State Public Official Act, as well as related provisions suggest that the substance of the crime stipulated by the provision regulating a political activity is ‘an active and positive action of a public official related to a formation of a political party and election campaign’. Accordingly, the principle of void for vagueness under the principle of nulla poena sine lege is not infringed.

(2) The necessity to specify the prohibited political activities of public officials who are affiliated with the National Assembly, Court, Constitutional Court, National Election Commission, Administration and others is confirmed; and the necessity of delegation is also agreeable in that it is impossible to specify such prohibited political activities in statutes from the perspective of the legislative enactment. Because it is

foreseeable to restrict a political action which may substantially injure the political neutrality of public officials, the provision regulating a political activity does not violate the principle against the comprehensive authorization.

Summary of Dissenting Opinion on the Provision to Forbid Joining a Political Party by Four Justices

1. Principle against excessive restriction

The provision to forbid joining a political party, prohibiting public officials from being a member of a political party in principle and ex ante, does not prove the correlation between the legislative purpose and the legislative means, as well as the appropriateness in restricting the right to join a political party of a public official. Considering the State Public Official Act sufficiently provides the means to promote the political neutrality and work discipline, the unconditional ban on joining a political party would infringe the principle of the least restriction. In addition, the principle of balance of interests is infringed in a sense that the public interests achieved by the provision to forbid joining a political party is substantially unforeseeable and abstract, while the right to join a political party is significantly restricted.

2. Principle of equality

The aforementioned provision unconditionally forbids elementary and secondary school teachers from joining a political party because of the possible effects of partisan education, while university faculty is allowed to be a member of a political party. Nonetheless, university education has broader discretion in teaching, more susceptible to being affected by a view of a certain political party. Furthermore, it is not logical to presume an elementary or secondary school teacher will provide partisan education just because he/she is a member of a political party. It is

unreasonable discrimination, exceeding the scope of discretion, thus violating the principle of equality.

Summary of Concurring Opinion

Considering the social conflicts arising out of regionalism, patronage system and top down communication of the public official society as well as election of authority in our election practices, the general permission for a public official to be a member of a political party would not correspond to the Constitutional request that ‘a public official is a servant for the entire people’, by substantially infringing the political neutrality of public officials. Therefore, the provision to forbid joining a political party is not against the Constitution.

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