법의 실질적 효력에 대하여

Abstract

As is well known, the rule of law is the principle that power should be exercised based on laws enacted and revised by the legislature. Therefore, the rule of law is a principle that power cannot be arbitrarily exercised or exercised by a person in power, but must be exercised only on the basis of law. In other words, the rule of law is to prevent abuse of power by limiting the arbitrary and subjective exercise of power by requiring the exercise of power to be based on the law. However, opinions are still divided as to why the rule of law is necessary and what it means. The rule of law is a principle to prevent and limit abuse of power by requiring the exercise of power to be based on the law, or guarantee and protect individuals' freedom and rights by limiting the exercise of power to be based on the law. These various views on the rule of law are related to what the national community wants to achieve through the rule of law. I think that the exercise of power is to prevent abuse of power and to guarantee and protect individuals' freedom and rights by demanding that it be based on the law. In other words, when the exercise of power is arbitrary and subjective by the person in power, it only brings about the expansion of power, but individual freedom and rights are bound to be limited. Therefore, the rule of law should be exercised on the basis of 'law' rather than the subjective will of individuals or power, and infringement of individual freedom and rights by powerful people or power groups should not be recognized without the basis of law. However, given that the law is enacted by the power group and reflects the subjective will of the power group, it is problematic to call it the rule of law if the exercise of power is based on the law. This is because if power is exercised based on the law only by the arbitrary and subjective will of the powerful person or the power group, it can be reduced to a tool that can suppress individual freedom and rights. In other words, if power is exercised based on laws only for power people or power purposes, it can mean the expansion of power, not the restriction and abuse of power. Therefore, if the purpose of the rule of law is to guarantee and protect individuals' freedom and rights, the law for the rule of law should be recognized only when power is exercised based on the law that is recognized as having practical effect to guarantee and protect individuals' freedom and rights.