우리 헌법에 있어서 공무원노동조합의 정치적 의사표현자유와 공무원 제도에 대한 기능주의적 이해

Functionalist Understanding of Civil Servants’ Trade Unions’ Political Expression and the System of Civil Service in the Korean Constitution

Nowadays, it might be difficult to recognize the argument that rejects civil servants’ three rights and their trade unions. Nevertheless, legal operations of civil servants’ employment relations are very vulnerable to changing political climates that the government and civil servants create. In other words, labour’s legal system enabling civil servants’ trade unions and related activities has not yet been stabilized. Against this backdrop, this paper attempts to understand political expression of civil servants’ trade unions, which provoked a wide scope of pros and cons in Korea. It also seeks to examine the constitutionally protected core of the civil servant system and relevant constitutional rights which are immune from any political or ideological pressures. The paper addresses these issues from the perspective of functionalism, which analyzes original constitutional tasks and functions of each legal system. In this regard, the paper will examine constitutional legal issues concerning civil servants’ trade unions’ political activities, especially political expression. This study will address changes and challenges found in special-power-relation theory. Ultimately, this analysis concludes that protections and restrictions of civil servants’ trade unions’ fundamental rights should avoid black-and-white matters, in which the government blocks or allows all relevant political expressions. Therefore, this article argues that colliding relevant legal interests need to be articulated and adjusted in the context of functionalism. In this context, this paper will examine the functions of the civil servant system and constitutional rights in the constitutional structure of society. In addition, it will determine out how the original functional tasks of civil servant system and constitutional rights are optimized in the context of practical coordination principle. This study will further demonstrate that the constitution should provide minimal protection, enabling the trade union to express its own political opinion directly related to working conditions or labour rights. Finally, the paper will touch upon other kinds of political expression not closely related to labour environments, arguing that top-down and ban-based labour policies would worsen the situation. Therefore, the government needs to develop “practical and living” social rules based on mutual cooperation and trust between the government and labour. In other words, the government—introducing informal social norms—can identify a solution to enhance the possibility of autonomous control regarding civil servants’ trade unions’ political expressions. This approach might require labour policy changes in governmental attitudes, resulting in cumbersome labour-related legal issues.