헌법재판과 사법적극주의

Abstract

The Korean Constitution explicitly stipulates the constitutional adjudication system by the Constitutional Court(“the Court”), thereby institutionalizing judicial activism. Nonetheless, the discussion of judicial activism still holds significance in Korea, as it raises questions regarding the limits of the Court's authority and the extent of its proper exercise.
 The evaluation of judicial activism varies depending on one's understanding of the constitutional principles such as popular sovereignty, separation of powers and supremacy of the Constitution. The assessment of the current political situation may also affect the evaluation of judicial activism. Judicial activism of the Court refers to decisions that expand the Court's jurisdiction by relaxing the requirements for constitutional review and that increase the Court’s control over the other constitutional branches by heightening the standard of review or discovering new unwritten constitutional norms. Evaluating the Court’s decisions as judicial activism can be used in different ways. It could be a criticism of the Court for exceeding its limits of power or making undesirable decisions within its power. It could also be a praise for the Court for exercising its power to protect and maintain the Constitution.
 Each time the Court exercises its constitutional review authority, it should reflect on whether its actions are appropriate in light of the ideals and principles of the Constitution.