병(兵)의 선거운동 제한 ― 헌법재판소 2018. 4. 26. 선고 2016헌마611결정 ―

The Constitutional Court declared in Decision 2018. 4. 26. 2016Hun-Ma611 that private soldiers also fall under the category of ‘public officials in special services’according to the State Public Officials Act, and regardless of whether their status allows it or not under Article 5 of the Constitution on the neutral position of the military and Article 7 on the political neutrality of public officials, they cannot engage in political expression or election campaigns. The Court also upheld the constitutionality of provisions in the State Public Officials Act and the Military Criminal Act that prohibit such activities. Criticism of the Constitutional Court's decision can be made as follows: First, unlike officers or non-commissioned officers, enlisted personnels have never been appointed as public official by the state. ‘Public officials in special services’are appointed based on qualifications and achievements, while enlisted personnels are assessed based on physical grades and subjected to conscription measures. Second, the provisions of Article 5 of the Constitution regarding the political neutrality of the military and Article 7 regarding the political neutrality of civil servants cannot serve as grounds for restricting the political expression freedom or freedom to engage in election campaigns of enlisted personnels. These provisions are commands to prevent the military and civil servants from being mobilized in politics by political leaders and military personnel after (military) dictatorship periods experience, and not to be utilized in politics. This is a natural interpretation in light of our constitutional history's lessons. Furthermore, it means that the military and public officials, as groups or organizations under the Constitution, must maintain political neutrality. When it comes to individuals, these provisions should be interpreted as guaranteeing the right to refuse participation in political activities when mobilized. Third, it is simply unacceptable to assume that allowing enlisted personnels to engage in election campaigns may mislead the public into believing that it represents the entire military's opinion. There is no evidence whatsoever to support such concerns being the legislative purpose. The Framework Act on Military Status and Service stipulates that private soldiers also have the same constitutional basic rights as ordinary citizens and can be restricted within the scope of military necessities. Therefore, the interpretation must be that the freedom of election campaigns or political expression of private soldiers is restricted only during operations, training, or when done collectively.