헌법재판소 결정에 대한 정량적 분석에 관한 시론적 연구

Abstract

This paper aims to analyze the argumentative structure of proportionality in the Constitutional Court's decisions regarding laws restricting the venue of assemblies from the perspective of the quantity. Specifically, this paper focuses on the minimal impairment and balancing by establishing seven indicators. The seven indicators are broadly composed of three indicators related to the minimal harm of infringement, three indicators related to the balance of legal interests, and one indicator related to the intensity of scrutiny. The Constitutional Court changed their position from constitutional to unconstitutional upon adjudicating the prohibition of assemblies near the National Assembly Building in the Decision 2018Hun-Ba322 on May 31, 2018. Therefore, the analysis of this decision takes precedence. Subsequently, the analysis proceeds to the recent decisions such as the 2018Hun-Ba48 on December 22, 2022, regarding the prohibition of assemblies near the presidential residence and the 2019Hun-Ma1417 on September 26, 2023, regarding the prohibition of assemblies in front of Incheon City Hall. From the perspective of the quantity of arguments, an analysis of the argumentative structure of these three decisions reveals that the distinctions between minimal impairment and balancing has become clearer, as well as an enhanced recognition and argumentation regarding the intensity of judicial review. Consistent argumentative structures concerning minimal impairment and balancing enhance the persuasiveness of the decisions, lead to more appropriate conclusions, and prevent arbitrary decisions, highlighting their significant importance. Furthermore, the intensity of judicial review has distinguished significance in Constitutional Court rulings as it is a matter of the principle of separation of powers regarding the extent to which the discretion of the legislative branch should be respected. Especially in cases regarding legal provisions that restrict essential freedoms for maintaining democracy, such as the freedom of assembly, the necessity for clearly articulating the intensity of scrutiny is even greater. The rules of argumentation that must be followed to reach any conclusion, whether constitutional or unconstitutional, should be consistently upheld.