Korean Constitutional Court Research Articles

아동 범죄피해자 진술의 증거능력과 헌법상 반대신문권 - 미국법원 판례의 비교법적 고찰

The defendant's right to cross-examine witnesses is established as a constitutional right under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Our criminal procedure law also provides for the right to cross-examine, and the Constitutional Court has determined that this right forms a core part of the constitutional right to a fair trial. However, when the victim of a crime is a child, the issue arises of how to ensure the defendant's right to cross-examination in such cases. This presents a conflict between guaranteeing the defendant's right to cross-examine and protecting the interests of the child victim. It also touches on the issue of the strict application of the hearsay rule versus the recognition of reasonable exceptions. In the United States, various cases have raised issues concerning the protection of child crime victims and the guarantee of the Confrontation Clause under the Sixth Amendment. U.S. case law has addressed controversies in instances where child victims testified using one-way closed-circuit television, or where teachers testified in court about statements made by the child rather than the child testifying directly. Additionally, a recent case in Virginia brought into question the admissibility of forensic interview recordings of a child victim as evidence. In contrast, the Constitutional Court of Korea ruled that a provision of the Sexual Violence Punishment Act, which recognized the admissibility of video statements by sexual violence victims under the age of 19, violated the Constitution by infringing on the defendant's right to cross-examination, which is a core component of the constitutional right to a fair trial. Following this decision, the Sexual Violence Punishment Act was amended to harmonize the defendant's right to cross-examination with the protection of child victims. This paper examines U.S. court rulings on the admissibility of child victim statements, the decisions of the Korean Constitutional Court, and recent amendments to the Sexual Violence Punishment Act. It explores the principles and exceptions concerning the application of the hearsay rule and the right to cross-examination in cases where the victim is a child, as well as rational approaches to the operation of these systems.

현대 사회에서 헌법상 근로자 개념의 재구성

This study explores the necessity and direction for the reconstruction of the constitutional concept of workers in light of changes in the contemporary labour environment. The emergence of diverse forms of labour that transcend the traditional “blue-collar” worker calls for a reassessment of the concept of workers as defined by labour law. However, the Korean Constitutional Court bases its definition of constitutional workers on labour law, while the legislature has been reluctant to amend the provisions defining workers for decades. In this context, courts attempt to include various forms of labour by expanding the interpretation of existing legal definitions. However, such judicial interpretations seem insufficient to keep pace with changes in the labour environment, complicating the law’s consistency, thereby increasing the complexity and placing an undue political burden on the judiciary. Based on this analysis, this study emphasizes that the primary responsibility for encompassing new labour realities through legal amendments lies with the legislature, advocating the necessity to reset the constitutional concept of labour as a basis for legislation and a standard for constitutional review in the post-remedial process. To this end, this research reinterprets Hugo Sinzheimer’s concept of labour constitution in a contemporary context and derives indicators for a new concept of workers that surpass dependency theory, aiming to provide a legal foundation that can flexibly and resiliently respond to the complexities of the labour environment. This study proposes setting the concept of workers as a higher-order concept and, based on this, suggests ways to diversify the concept of labourers and labour laws at the legal level. Traditional labour relations will be covered by the regulation of existing labour laws, while emerging grey areas will be encompassed through individual labour laws. Such an approach to diversified individual labour laws ensures that the constitutionally granted labour rights and the diversity and specificity of labour relations are harmoniously reflected, ultimately guaranteeing an equal level of protection for all workers.

STUDI KOMPARATIF ABORSI DI INDONESIA DAN KOREA SELATAN DALAM PERSPEKTIF FEMINIST LEGAL THEORY

Abortion in Indonesia is still considered taboo and criminalized, while abortion in South Korea is the opposite. Countries that use the same legal system do not mean their regulations are also the same. Abortion raises different opinions from Pro-Life and Pro-Choice people. Analysis of feminist legal theory, especially radical feminism, is used to see the response of Indonesia and South Korea to abortion. This research aims to: 1) determine abortion regulations in Indonesia and South Korea; and 2) analysis of feminist legal theory regarding abortion in Indonesia and South Korea. This research is normative legal research or doctrinal research, using a statutory-regulatory approach, contextual approach, and comparative study. The data sources used are primary legal materials, namely Law Number 17 of 2023 concerning Health, the Criminal Code, and Law Number 1 of 2023 concerning the Criminal Code. Secondary legal materials are in the form of literature reviews related to legal materials that are appropriate to the research topic. The research shows that abortion in Indonesia is not fully legalized, in contrast to South Korea which has lifted the ban on abortion after the decision of the South Korean Constitutional Court. Based on the analysis of Feminist Legal Theory, Indonesia still has not accepted and accommodated all forms of demands from feminism, while South Korea considers abortion to be a woman's right and what is within a woman is her full right.

A Comparative Study on the Constitutionalization of Abortion in Korea, On The Busy Intersection of Morality and Law

This study presents a comparative overview of certain parallel aspects in the legal history of the abortion debate as it transpired historically in the key judicial opinions in the United States and Germany, and recently in the Korean Republic. The object is to elucidate the extreme difficulty that the learned Justices of the Courts in the United States and Germany faced in attempting to objectively measure the moral values involved in the determination of maternal and fetal rights, and their inability to provide rational explanations for the initial prioritization or ultimate balancing of the rights. As a result, the Courts failed to direct and stabilize abortion regulation because their frameworks were neither proven to be equitable nor legally workable. The primary method of this study is to highlight the questionable nature of the legal frameworks of the original abortion opinions of the U.S. Supreme Court and the German Constitutional Court to demonstrate that they were guided more by the personal moral convictions of the Justices than by the dictates of the law. The goal is to offer a comparative context that begins to explore the question, whether the Korean Constitutional Court has indeed found a way to resolve the abortion debate once and for all, or alternatively, whether all protagonists in Korea ought to shift course to help avoid weakening the authority of the rule of law and its legitimacy in the public eye, by delaying any further attempt in the resolution of this controversial issue until a national debate on the dialectic results in a consensus in the public, scholarly, and ultimately legislative discourse that properly values and balances the mother’s right of self-determination with the natural right of the fetus to life.

관광법제에서의 공법적 쟁점에 관한 일고찰

Korea's tourism legislation has the Basic Tourism Act, which sets basic matters for tourism, and the Tourism Promotion and Development Fund Act, which includes regulations on tourism finance, but above all, it is characterized by the focus of the Tourism Promotion Act. The Framework Act on Tourism and the Tourism Promotion Act stipulate each tourism-related administrative plan to achieve the purpose and purpose of each law, but it needs to be improved due to the problem that the sub-plan is not systematically consistent with the top plan. In addition, tourism is not only a business but also a target of tourism for the entire nation, including the socially vulnerable, but there is no legal basis that can be substantially embodied as well as instructive regulations on the so-called “right to tourism.” The casino business is a tourism area that should be promoted as a unique area of tourism business and at the same time as a gambling industry that should be suppressed. ‘The Law on Integrated Supervision of the gambling industry’ has a special restriction on the total sales system through organizational legal regulations, but there is no action legal basis. Tourism finance is operated around the 'Tourism Promotion and Development Fund'. Among the contributions that are the financial resources of this fund, the problem related to the constitutional legitimacy is the departure payment, and it is judged that it does not meet all the requirements for the permissibility of the financial burden required by the Korean Constitutional Court. If the constitutional legitimacy of this levy is denied by the Constitutional Court, it will be difficult to secure funds for the Tourism Promotion and Development Fund, so it is necessary to introduce another levy with constitutional legitimacy.

유럽인권재판소의 공정한 균형 심사

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.

국경간(國境間) 표현의 자유에 관한 비교법적 연구

While technological developments are rapidly facilitating the cross-border exchange of ideas and information, the Korean legal system continues to differentiate the treatment of domestic speech and cross-border speech. Various restrictions on grounds of expression are imposed regarding the physical movement of people and objects as well as internet speech that transcend borders. The Korean Constitutional Court has yet to explicitly acknowledge the constitutional status of cross-border expression, and the gap between protection of domestic and cross-border speech remains unaddressed. In contrast, the US Supreme Court ruling Lamont v. Postmaster General(1965) acknowledged the right to receive foreign mail under the First Amendment. Also, Holder v. Humanitarian Law Project(2020) acknowledged that content-based restrictions of speech under the direction of, or in coordination with foreign groups are subject to heightened scrutiny. The German Constitutional Court ruling of the case Leipziger Volkszeitung(1961) acknowledged the right to receive foreign information under Article 5 of the Basic Law, and in the case Ausland-Ausland-Fernmeldeaufklärung(2020), the German Constitutional Court clarified that fundamental rights vis-à-vis the German state authority is not restricted to German territory - the German state authority is bound by fundamental rights even when acting against foreigners in foreign territory. This article analyses the above decisions along with others from the US Supreme Court, the German Constitutional Court and the European Court of Human Rights with the aim of extracting lessons that may be applicable in establishing the constitutional status of cross-border speech under the Korean Constitution. Similarly to the foreign examples, the Korean Constitutional Court may be able to justify the constitutional protection of cross-border speech based on its former justification theories regarding domestic speech, and also considering international human rights standards. This can serve as a starting point for a broader and more substantial perspective of the freedom of speech that will be able to address its increasingly international aspects.

Legal Protection of Domestic Workers - A Critical Analysis of Korean Constitutional Court 2016Heon-ba454 Decision and Comparative Perspective -

Legal Protection of Domestic Workers - A Critical Analysis of Korean Constitutional Court 2016Heon-ba454 Decision and Comparative Perspective -

실체적 적법절차원칙의 비판적 검토

The origin of the due process of law goes back to the Constitution, and it was stipulated in the Amendments to the United States Constitution and established as a principle governing the procedural and substantive aspects of governmental actions that deprive life, liberty, and property. The substantive due process was accepted as a criterion for judicial review after the 1880s, and became the basis for invalidating various economic regulatory legislation in the Lochner era. Since the 1960s, the U.S. Supreme Court has derived several fundamental rights not enumerated in the Constitution based on the substantive due process doctrine. The due process of law was first introduced into Korean legal order during the period of the U.S. Military Government in Korea. Article 12 of the current Constitution stipulates due procedures. The Constitutional Court and mainstream theories acknowledge that the provision is an adaptation of the Anglo-American due process of law. However, opinions differ as to whether the substantive due process is necessary in the Korean Constitution. In the United States, the substantive due process is criticized as a conceptual contradiction and that the courts take the place of other institutions. Some argue that the due process of law was procedural in its history, and that fundamental rights should be derived from other constitutional provisions. It is also pointed out that there is inconsistency in the specific application of the due process principle, and that there are limitations in determining fundamental rights based on historical and traditional standards. The practical significance of the substantive due process principle cannot be overlooked. However, in order for the substantive due process principle to be recognized in the Korean Constitution, it needs to be supported by convincing arguments. Korea is a single country, has a general provision on the limit of restriction of constitutional rights, and has a detailed list of fundamental rights, leaving less room for the substantive due process to operate than the United States. However, the arguments presented from the standpoint of affirming the necessity of the substantive due process of law are insufficient. In addition, it is judged that the substantive due process of law has not established itself as an independent judicial review standard in the Korean Constitutional Court, at least until now.

외국인의 인권

In 2001, the Korean Constitutional Court recognized the fundamental rights of non-citizens under the Korean Constitution by referencing them as “human rights.” The landmark decision had a significant meaning that the legal protection under the Constitution would be extended to non-citizens despite the textual limitations of the Constitution, which could have been interpreted that it confers fundamental rights only to citizens. Over the past around twenty years since then, however, the Court, in its rulings on the issues of migrants and refugees, retreated from protecting the rights of non-citizens on equal footing as citizens.
 Based on the review of the rulings since 2001, this article criticizes that the Court has rendered arbitrary and incongruent decisions that allow, as well as normalize, discriminatory treatment against migrants and refugees. The Court decided to grant constitutional protection to non-citizens only when the Court recognizes certain rights as a “human right,” as opposed to “citizens’ rights,” but it did so without any reference to specific criteria for judgment including international human rights law. The Court then relaxed the standard of review on constitutionality when the issues concern the restrictions against non-citizens, by explicitly stating that the level of constitutional protection for non-citizens may not be same as for citizens.
 In legitimizing the restrictions of fundamental rights against non-citizens, the Court relied on the assumption that foreigners are presumptively potential ‘illegal migrants’ who would harm social order. It also considered that the interests and benefits of citizens make valid reasons to justify the restrictions on non-citizens’ rights. This article discusses the irony how the Court in its rulings has undermined the principles of human rights while referencing to “human rights” as the basis of recognizing the constitutional rights of non-citizens.

위헌심사기준으로서의 비례원칙

The Prohibition of Excessive Restriction or the Proportionality Principle (hereafter as “the Proportionality”) in a broad sense refers to the basic principle or the limitation of legislative activities that the state should abide by in carrying out when it makes laws that restrict the citizens’ basic rights. In other words, laws that restrict the citizens’ basic rights must meet the qualifications of the Legitimate Law Object, the Adequate Mean, the Minimal Impairment, and the Balancing between personal interest and public interest (hereafter as “the Balancing”). The Korean Constitutional Court (hereafter as “the Court”) has so far tended to focus its arguments on the Minimal Impairment in applying the four sub-principles of the Proportionality: the Legitimate Law Object, the Adequate Mean, the Minimal Impairment, and the Balancing. However, the Proportionality is a sequential and step-by-step review structure, and ‘step-by-step review’ presupposes that each sub-principle has its own meaning. If so, the Court’s Balancing review that has been criticized as “an overdose of the Proportionality”, should now be changed. That is, the Minimal Impairment should be limited to the evaluation of “legislative alternatives”, and the degree of restriction on basic rights or the judgment of Endurance Possibility should be moved to the Balancing to make use of the merits of the step-by-step review. These changes also bring the Court on par with the trends of advanced foreign constitutional courts such as Germany (The German Constitutional Court) and Canda (the Canadian Federal Supreme Court). Moreover, by doing so, the Court can correctly establish the criteria of the Proportionality as a reviewing standard of constitutionality.

The Crisis of Right to Informational Self-Determination versus the Crisis of Social Safety

The control of information about oneself has emerged as the most sensitive issue both personally and nationally in a digital information society. In the digital information society, the right to informational self-determination is very likely to emerge as a fundamental constitutional right to be the cornerstone of maintaining a free democratic system. As a guardian of constitutional rights, the Korean Constitutional Court has maintained an appropriate balance between guaranteeing the right to informational self-determination and social safety. This paper examines how the Constitutional Court allows restrictions on the right to informational self-determination by analyzing the details of the four-step review of the principle of prohibition of excessive restriction on cases of violation of the right to informational self-determination. Even if some flaws are often found in the process of the argumentation, the Constitutional Court's credit for properly balancing the right to informational self-determination and social safety as public interest should not be underestimated.

The Constitutional Court as a Political Crisis Manager

While the Korean National Assembly, a symbol of representative and majoritarian democracy, was found to lack problem-solving ability on political issues that had attracted public attention, the Korean Constitutional Court emerged as a new problem- solver. A very large proportion of the high-profile cases brought for decision to the Constitutional Court involved intense political controversies which might have led to political crisis. The state of the presidential impeachment is both a crisis of democracy and a crisis of the Constitution. The resolution of the problem was concluded by the judicial judgment of the Constitutional Court, and the two governance crises in 2004 and 2016 ended in considerable stability in the fields of politics, administration, economy, and society. The Constitutional Court can help the political process and the virtuous cycle of deliberation through constitutional trials. In order for the Constitutional Court to preserve its independence in a dynamic political surroundings and continue to play the role of protecting the Constitution, it needs the development of democracy and autonomous public support and monitoring.

2019년 이후 낙태의 죄

The Korean Constitutional Court brought much complicated legal issues instead of settlement of the abortion debates. It overruled old decision of its own in 2012. She sacrificed the principle of legal stability. The Court, however, admitted the petition which was once refused by the court. In principio, once rejected case must be appealed up to higher court rather than the same stance. No other cases go through like that. The petition on the section 270 sub. 1 of former criminal law about assited abortion by medical professionals was reviewd with respect to autonomy of pregnant person. It would be a fallacy of category. Modern legal theories are old that the court cannot tell her own personal opinion (Weltanschauung), but they should focus on counselling which arguments will be won in the courts. The best argument for the other side was available at one branch of the most fashionable rationality. A modern theory would be making out of the lands of authoritarian judges. It went on the hands of people who have the right to process. A mind-independence is a criterion, or a necessary condition, for realism. To say something being mind-independent is typically thought to be part of what it is to say that it is real and objective, means truly exists. It is not the imagination or other cognitive faculties. The mind-independence (or the related notion of human-independence) in a criterium for realism differs from a set of phenomena, a physical world. Perhaps that is how it should be; legal properties like abortion are often regarded as ontologically suspect where is dominated in the field of morality or religious beliefs. This criterion seems to allow us to distinguish them clearly from the material properties. It should be useful to understand this issue in a matter-dependent analysis. Both opponents and supporters of abortion concern the case will have wild possibility to overturn Roe v. Wade in 1973. In June 2022, the US Supreme court held Dobbs v. Jackson in favour of the plantiff Dobbs, a official who worked for the government of state Mississippi. It touched the old prime rule of stare decisis and viability measurement. Still controversial whether Dobbs case would change all the abortion practice in the US and further. By now no one has complacency yet. I will show these distinctions to cling to strictly if there is a coherence to be made. The abortion should be told in legal science only, and then a politics or welfare policies would be adapted hereafter.

Recent trend and issues in amending family law in Korea

Civil law countries generally include family law in their respective civil codes. The Republic of Korea is not the exception under this aspect. The Korean Civil Code which was enacted in 1958 and came into force in 1960 is structured on the base of the Pandekten system. Based on it, Part IV of the Civil Code is the law on relatives. The Korean Civil Code since its coming into effect on January 1, 1960 has been amended twenty nine times, among which thirteen amendments concerned the revision of the law on relatives. Given that general reluctance to amend the Civil Code in Korea, the relative regularity of the revisions show how significant the changes were that took place regarding family relations in the Korean society. A study of the history of amendments show that the factors of amending family law are three-fold. First, family law was amended for the purpose of gradual evolution of the Code by shedding elements of premodern law found therein. The amendments of 1962, 1977, 1990 and 2005 took place due to such a factor. Second, there were those amendments that were the result of the Korean Constitutional Court’s decision that determined that particular provisions inheritance were either unconstitutional or non-conformable to the Constitution. Third, family law was also amended in order to reflect the urbanization, industrialization, ageing of the Korean society and the rise of individualism, thereby strengthening the institution of family and affording more protection to the weak within the family. The latest amendment was the result of the latter. Among other things, the article pays some attention to the family legislation of North Korea, its specific features and unique structural differences from both the law of the Republic of Korea and the civilian tradition in general.

Right to Life and Capital Punishment in Transnational Judicial Dialogue

AbstractIn this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea

AbstractThrough the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

‘lex specialis derogat legi generali’-principle and its Theoretical Comformation

In this paper are systematically reviewed, nature of special law, ‘lex specialis derogat legi generali’-principle(lex specialis-principle), exception to lex specialis-principle and opportunity principle as legal ground allowed exception to lex specialis-principle and prosecutor’s prosecutorial discretion derived from opportunity principle. So, first, here was criminal law theoretically analyzed, nature of special law and situation of discussion about that, for example, how the special law was in the criminal law discussed, more concretely, pointed out that excesses of special law discussed so far does not closely related to the subject of this study and lex specialis-principle was discussed in the diversity of crime in the general theory of criminal law, more concretly special relation of competition of provision. However, this lex specialis-principle related to special relation of competition of provision does not directly related to the subject of this study, because lex specialis-principle here is limiting the discussion of special relation inside the criminal law. So in this study was analyzed the nature of special law and lex specialis-principle. Moreover, argument of exception to lex specialis-principle was reviewed. Especially, even if exception to lex specialis-principle was not criminal law theoretically confirmed, it was approved by the decisions of the Korean Supreme Court(KSC) and was ruled constitutionally by the Korean Constitutional Court(KCC). KSC found the ground of exception to lex specialis-principle in prosecutor’s prosecutorial discretion. So in this study was reviewed the nature of opportunity principle, in order to confirm whether exception to lex specialis-principle is based on prosecutor’s prosecutorial discretion, and its limit on its grounds. In addition, the KSC had ruled that if the prosecutor indicted the suspect violating the general law and the special law simultaneously with the general law instead of the special law having heavier penalty compared with penalty of general law, the court of law could not have punished the defendant with the special law without modification of indictment. According to this decision, even if the prosecutor indicted the case which he have to indict with the special law allowing the defendant heavier penalty with the general law, the court can not punish the defendant with the special law instead of the general law, in order to make prosecutor’s wrong indictment correct. So, even if the jurisdiction is distorted like this, the way improving this problem was blocked fundamentally. This study is pointing out these problems and will give the reform measure about that at first hand.

사회권 위반 여부에 대한 판단 기준으로서 최소핵심의무 -헌법재판소 결정례 비판을 포함하여-

본 논문은 UN 사회권규약위원회가 일반논평을 통하여 제시한 이른바 최소핵심의무를 연구주제로 다루고 있다. 사회권규약은 당사국에게 자국의 가용자원이 허용하는 최대한도내에서 사회권의 점진적 실현을 달성하기 위하여 필요한 조치를 취할 것을 의무로 부여하고 있다. 이는 과연 당사국이 어떠한 방식으로 조약에 따른 의무를 준수할 수 있는지, 그리고 어떠한 경우 그 의무를 위반하였다 볼 수 있는지에 관한 기준을 명확히 특정할 수 없다는 문제를 초래하고 있다. 이에 사회권규약위원회는 20세기 말부터 제시된 일련의 일반논평을 통하여 조약 위반 여부를 판단하는 기준으로 최소핵심의무를 제시한 바 있다. 이 논문은 최소핵심의무가 어떠한 이론적 배경에서 도출되었는지, 그 내용이 무엇인지, 그러한 개념에 어떠한 한계가 존재하는지를 논의하고 있다. 최소핵심의무에 따르면 국가는 자신의 가용자원을 분배하는 과정에서 일종의 우선순위를 두어, 아동, 노인, 빈곤층과 같은 취약계층과 소외계층이 생존 혹은 인간다운 생활을 영위하기 위하여 필수적으로 요구되는 최소이익을 보장 할 의무를 가진다. 이는 자유권과 구분되는 사회권을 법적 성격상 국가에게 인정되는 광범위한 재량에도 불구하고, 취약계층의 보호를 위하여 결코 침범되어서는 아니 될 일종의 마지노선을 상정하는 것이다. 이러한 이론적 논의를 배경으로, 논문은 최소핵심의무에 관한 사례연구로서 남아프리카공화국의 관련 판례를 살펴보고 이들 판례를 우리 헌법재판소 결정례와 비교·대조하고 있다. 주지하는 바와 같이, 헌법재판소는 사회권 실현을 위한 입법부와 행정부의 광범위한 재량을 인정하는 명백성 통제에 따라 사회권의 사법심사를 최대한 자제하는 모습을 보이고 있다. 이처럼 사회권의 사법적 구제를 사실상 불가능하게 만드는 명백성 통제를 적용하면서도, 재판소는 그 침해 여부를 판단하는 과정에서 헌법이 요구하는 “최소한도”의 내용과 조치가 실현되었는지 여부를 기준으로 삼는다 명시하는바, 본 논문은 재판소가 언급하는 “최소한도”라는 개념이 최소 핵심의무와 유사한 것인지를 살펴보고, 그러한 개념을 명백성 통제와 병행하는 논증의 구조에 어떠한 논리적 결함이 있는지를 비판적으로 검토하고 있다.

An Appraisement of the Korean Constitutional Court’ Decision concerning the Non-blanket-delegation Principle

An Appraisement of the Korean Constitutional Court’ Decision concerning the Non-blanket-delegation Principle