초·중·고등학교 교원의 정치활동의 범죄화 비판 (De-criminalization of the Political Activities of School Teachers)

서지정보

· 발행기관 : 한국형사정책학회
· 수록지 정보 : 형사정책 / 24권 / 2호 / 139 ~ 166페이지
· 저자명 : 조국

초록

Under the current Korean law, unlike university/college professors,elementary/middle/high school teachers are not allowed to join a political party and engage in collective political activities including political campaigns for or against a political party during election period. Although the Korean Teachers and Education Union [KTU] received official recognition in 1999, it is not also permitted to engage in any political activity. The teachers who have breached this prohibition are given criminal sanction as well as administrative sanction.
The Constitutional Court of Korea decided such criminalization of the politically active teachers is constitutional because; education must be separated from politics and teachers must be politically neutral; minors are immature unlike college students, so easily influenced by political activities of teachers; the students' right to class may be infringed by political activities of teachers. The Court also held that the criminal prohibition does not violate the constitutional principle of equality before law in that major tasks of teachers are teaching while those of professors are academic research.
In cases where teachers collectively announced political declarations to criticize governments' policies in 2004 and 2009, the Supreme Court of Korea quashed the lower courts' judgements and held that the teachers violated political neutrality with intention to establish anti-government political front.
This Article starts with a review of the OECD countries' law and international norm regarding teachers' engagement in political activities. It proceeds to criticize the judgements of the Constitutional Court and the Supreme Court. It finally argues that current law regarding teachers'political activities excessively restricts teachers' political rights, therefore unconstitutional. Until the revision of the law, the law should be interpreted in a limited way to respect teachers' political rights.

영어초록

Under the current Korean law, unlike university/college professors,elementary/middle/high school teachers are not allowed to join a political party and engage in collective political activities including political campaigns for or against a political party during election period. Although the Korean Teachers and Education Union [KTU] received official recognition in 1999, it is not also permitted to engage in any political activity. The teachers who have breached this prohibition are given criminal sanction as well as administrative sanction.
The Constitutional Court of Korea decided such criminalization of the politically active teachers is constitutional because; education must be separated from politics and teachers must be politically neutral; minors are immature unlike college students, so easily influenced by political activities of teachers; the students' right to class may be infringed by political activities of teachers. The Court also held that the criminal prohibition does not violate the constitutional principle of equality before law in that major tasks of teachers are teaching while those of professors are academic research.
In cases where teachers collectively announced political declarations to criticize governments' policies in 2004 and 2009, the Supreme Court of Korea quashed the lower courts' judgements and held that the teachers violated political neutrality with intention to establish anti-government political front.
This Article starts with a review of the OECD countries' law and international norm regarding teachers' engagement in political activities. It proceeds to criticize the judgements of the Constitutional Court and the Supreme Court. It finally argues that current law regarding teachers'political activities excessively restricts teachers' political rights, therefore unconstitutional. Until the revision of the law, the law should be interpreted in a limited way to respect teachers' political rights.

참고자료

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