헌법재판소의 판례에 나타난 공익 -헌법재판소가 위헌심사에서 공익을 발견하고 적용하는 과정을 중심으로-

초록

The concept of public interest, which is set by the Korean Constitutional Court(KCC) as a basis of legitimacy that can justify limiting the fundamental rights, is based on the balancing test in judicial review. The public interest is the sum of other fundamental rights and constitutional interests, which is seeking profit by the legislator, except the rights of the being restricted. That is defined broadly as “national security, public order and public well-being” in Article 37 Section 2 of Korean Constitution(KC). KCC deals with the public interest differently in every stages of judicial review. Basically KCC respects the public interest set by legislators, unless it is obvious that legislators set apparently unfair or improper means to achieve the interest. The assessment of the public interest in judging the proportionality test is very difficult because that assessment depends on subjective value judgments of Justice’s. The public interest assessment is achieved by comparing the means’ effectiveness with other alternatives in the least restrictive means test. KCC reflects public interest based on the results of not only the presidential impeachment and unconstitutional political party dissolution cases, but also the cases, in which KCC changed the precedent or created the new constitutional right. In the former cases public interest is more concrete or detailed, whereas in the latter are relatively subjective and abstract.

키워드