헌법재판과 여론 －숙의⋅대화 거버넌스를 통한 한국 헌법재판의 재구조화 모색－

초록

Under the principle of judicial independence, the Constitutional Court has been traditionally positioned with clear distance from political power, and is far from the public opinion. However, judicialization of politics is becoming a global phenomenon and today it gets intensified in Korea as well. The influence of the public opinion over constitutional adjudication is getting greater that the Constitutional Court of Korea explicitly cited the public opinion in its decision on constitutionality on Improper Solicitation and Graft Act and decision on unconstitutionality of adultery. Media interviews with Justices or analysis of media reports also supports such phenomenon. The US, the origin of judicial review, has already developed theoretical and objective research on the influence of the public opinion over constitutional adjudication for Richard Posner and Barry Friedman as the most representative examples. It is no longer appreciated for the Constitutional Court to disregard the public opinion for the sake of judicial independence or to be passive in listening to the public opinion. The Constitutional Court ought not to be affected by the weather of the day, but will be by the climate of the era. (words by Ruth B. Ginsburg) Therefore, a new constitutional theory examining potential influence of the public opinion and its limitation must be introduced, which will lead to constitutional policy that brings out comprehensive public sphere on democracy and judicial review through constitutional adjudication. Selective approach in identifying political significance of the cases must be taken necessary to ultimately reach to Judicial Deliberation and Constitutional Dialogue. To perceive all cases equal might in reality, hold back such effort by the Constitutional Court. To make this shift, ①judicial deliberation should be further forced in the process of constitutional adjudication, while ②constitutional dialogue with the legislative and executive branches is to be encouraged and extended and finally ③various governmental branches and the people must be invited to public sphere for constitutional issues by expanding oral arguments and inferring to amicus curiae reports or statements.

키워드