國家의 基本權保護義務와 告示를 對象으로 한 不服方法: 미국산 쇠고기등 수입위생조건 위헌확인사건 평석

Abstract

This is a commentary on a case that came before the Korean Constitutional Court in which the petitioners challenged the constitutionality of a public notice that relaxed the sanitary conditions imposed on imported U.S. beef. The decision rendered by the Constitutional Court discussed the extent to which a state holds an obligation to protect its citizens from the dangers presented in modern society, in addition to the standard by which compliance with such an obligation, if recognized, should be assessed. A majority of the Constitutional Court held that the state has a concrete obligation to protect the life and physical safety of its citizens. The majority found that the public notice in the underlying case stipulated specific sanitary conditions for imported beef, which constituted state measures to protect the life and physical safety of consumers, and as such the public notice could possibly give rise to an infringement of the fundamental right to life and physical safety. The majority opinion concluded that these sanitary conditions qualified as appropriate and efficient measures providing a minimum level of protection for the public, and thereby held that the public notice was constitutional. Commentators and scholars have commended the Constitutional Court for its successful resolution of a social conflict within the framework of constitutional law. In this commentary, the author analyzes each of the majority and minority opinions of the Constitutional Court and discusses the implications raised. First, the author argues that acknowledging a state obligation to protect fundamental rights has the positive effect of expanding the scope of protection provided for fundamental rights beyond the traditional right to defend against state action to include protection against infringement of such rights by private parties. This expansion in protection, however, brings with it the problematic corresponding expansion in the scope of permitted interference by the state into the lives of its citizens. Second, if the content of the obligation to protect fundamental rights is more concretely articulated through the Constitutional Court, this has the effect of moving a determination usually made by the political process into the realm of the judiciary. Overall, if the obligation to protect fundamental rights is expanded through the Constitutional Court and the scope of permitted intervention by the state is also expanded in that process, the Constitutional Court will be leading the process of articulating fundamental rights, and judicial procedures will effectively be replacing democratic political processes. The commentary also addresses the viability of constitutional challenges against public notices in general. In this case, the Constitutional Court accepted a public notice amended by the executive branch pursuant to authority delegated by statute as a proper subject of a constitutional petition. The public notice in this case would become effective immediately, without the need for any other administrative action. It is unclear from this case alone, however, whether such constitutional petitions against public notices will be possible in the future, especially when taking into consideration the alternative option of using administrative proceedings. The question of whether constitutional petitions may be brought against public notices in general will be determined by taking into consideration a range of factors, including the limits of judicial control over administrative rulemaking, the underlying purpose of constitutional cases, and the ease with which remedies may be issued.