유럽인권재판소의 공정한 균형 심사

Abstract

The proportionality plays an important role in the case law of Europenan Court of Human Rights. The Court’s proportionality test is classified as a ‘horizontal’ proportionality test, setting it apart from the vertical proportionality test used by the Constitutional Court of Korea. The horizontal proportionality test of the European Court of Human Rights does not adhere to any particular order of assessment but instead focuses its reasoning on a fair balance test. The fair balance test is similar to the fourth prong of proportionality test of the Korean Constitutional Court. The essence of proportionality, from a theoretical standpoint, lies in determining whether the specific level of restriction on a right is worth being endured compared to the degree of benefits achieved by the actions of public authorities. In the jurisprudence of the European Court of Human Rights, the fair balance test perform this balancing task. Hence, the European Court of Human Rights' reasoning structure, which places a fair balance at its core, is theoretically sound. In applying the fair balancing test, the European Court of Human Rights considers not only the relevance to the fundamental values of the European Convention on Human Rights but also various specific circumstances of each case. This enables the Court to assess the concrete importance of the rights guaranteed by the Convention and the concrete value of the measures taken by member states, moving beyond their abstract value. While the European Court of Human Rights applies the “margin of appreciation” doctrine in their assessment of the fair balance, the reasoning structure still remains within the framework of a balancing test. The Constitutional Court of Korea also considers the balance of interests, although decisions where this prong predominate are rare. Nevertheless, there have been recent decisions that demonstrate a dedicated commitment to the balance of interests, both quantitatively and qualitatively. This new trend is commendable, both from a theoretical perspective and in comparison to the practices of the European Court of Human Rights.