공무원의 표현의 자유에 대한 제한과 그 한계 - 대법원 2017. 4. 13. 선고 2014두8469 판결, 정직처분등취소의 평석을 중심으로 -

초록

The Supreme Court of Korea delivered a very meaningful decision concerning the freedom of expression of public official on April 13. 2017(2014Doo8469). The issue of the decision is whether the disciplinary measures based on violations of prohibition of collective activities and duty to maintain dignity provided by the State Public Officials Act are legal, where the disciplinary measures was imposed on 11 public officials of the National Human Rights Commission who protested by means of relay one person demonstration against the Commission's denial of contract extension to their colleague. The constitutional meaning of the issue in this case is to which extent the freedom of expression of public official could be restricted by means of interpreting prohibition of collective activities and duty to maintain dignity provided by the State Public Officials Act. The purpose of this study is to look through an issue over restriction and it's limit of the freedom of expression of public official through review on 2014Doo8469 decision. The prohibition of collective activities and duty to maintain dignity provided by the State Public Officials Act are representative tools to restrict the freedom of expression of public official. Because a public official can enjoy the freedom of expression as a citizen of the Korean society, the extents of prohibition of collective activities and duty to maintain dignity provided by the State Public Officials Act need to be limited properly to guarantee the freedom of expression of public official substantively. In this context, in terms of interpretation of prohibition of collective activities, 2014Doo8469 decision can earn positive evaluation, because the decision ① presented prohibited types of collective activities concretely in contrast with former cases, ② blocked possibility of extension of collective activities, ③ as a result enhanced the freedom of expression of public official through conceding relay one person demonstration into protection of the freedom of expression. On the other hand, in terms of interpretation of duty to maintain dignity, 2014Doo8469 decision can earn negative evaluation, because the decision ① didn't present concrete criteria for judging about violation of duty to maintain dignity when public official expressed critical opinions on internal reform. ② didn't block properly possibility of extension of duty to maintain dignity, ③ as a result constricted the freedom of expression of public official through acknowledging violation of duty to maintain dignity in this case.

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