정치적 문제에 대한 사법심사 - 해외에서의 군사적 행동을 중심으로 -

Abstract

‘The political question doctrine’ and ‘the theory of executive prerogative’ are fading in Korea with the establishment of the rule of law. However, some cases of highly political nature may still need to be viewed as ‘political question’ or ‘high act of the executive’. While there is no clear and well-settled definition of ‘political question’, the decision to send troops to overseas military operations has conspicuous features making it a most likely candidate for ‘political question’. Political realism explains much of the difference between such a sensitive decision and other political or non-political cases concerning domestic affairs. The theory that matters regarding overseas military operations are unjusticiable because foreign policy decisions are wholly confided by the Constitution to the political departments is problematic. The judicial domain overlaps with the domain of political departments in this area, like in many others. The unique aspect of these delicate political issues is that a legal decision by the judiciary would practically be a policy decision. The decision essentially involves determination of highly controversial diplomatic issues related to national security while the judiciary cannot predict the diplomatic consequences of the decision. Nor is the judiciary held responsible for political or diplomatic repercussions of its decision in this sensitive area. The judiciary should only decide on the merits of those cases with appropriate substantive deference. It should not attempt to impose its own sustantive decision on these matters. The judiciary should abstain from deciding the issue when procedural deference has substantial benefit in resolving the case in a pragmatic manner. The judicial restraint expressed in this nuanced approach would be an elegant path for active judicial control in the true spirit of rule of law.