공무원의 성실의무에 대한 재검토 — 충실의무(Treuepflicht)와의 관계를 중심으로 —

All public officials shall be servants of the entire people and shall take responsibilities for the people. Based on this constitutional standing, public officials assume various duties. As for the public officials, Chapter 7 of the State Public Officials Act lists various duties and, among other duties, the duty of fidelity in Article 56, “Every public official shall faithfully perform his/her duties,” is recognized as the most fundamental and important one. The duty of fidelity can be perceived as a duty of ethic. Nevertheless, the duty of fidelity is a legal obligation; a violation of which can bring about disciplinary punishment. In fact, a substantial number of disciplinary punishments has been taken against public officials for their violations of the duty of fidelity. The problem lies in that there is no clear distinction between what is fidelitous versus what is not. This ambiguity seems to have derived from the ethical dimension of the duty of loyalty which is the origin of the duty of fidelity. There have been many discussions of the duty of loyalty in German scholarship from the mid-19th to early 20th centuries. In today’s Germany, the duty of loyalty is not currently imposed to individual public officials as a separate obligation. Although the duty of fidelity originates from Germany's duty of loyalty, it may not be an identical concept as the duty of loyalty. At present, the duty of fidelity is an individual legal obligation, a violation of which could immediately effectuate disciplinary actions. The dominant view in German academia is that individual actions that constitute a violation the duty of loyalty, not the violation itself, should be subject to disciplinary actions. This is because of the nature of the duty of loyalty that comprises of ethical duties. There have been many different cases of violation of the duty of fidelity in the past. If there is no well-defined concept and scope of the duty of fidelity, which is the very fundamental duty of public officials and the violation of which would warrant disciplinary punishments, the job security of public officials that the vocational civil service system guarantees under the Constitution may lose its purpose. In order to solve these problems, rather than categorizing the violation of the duty of fidelity as the violation of the duties of public officials as a whole, it would make more sense to first specify the types and actions that constitute the violation of the duty of fidelity, categorize them as the violation of the code of conduct, and punish them as they occur. Necessary legislative actions should be taken to revise the State Public Officials Act accordingly.