헌법상 기본원리에 관한 연구 - 환경국가원리의 인정여부를 중심으로-

Abstract

As environmental pollution attracts the attention of people, adopting the environmental state principle as a new basic principle of the Constitution has been constantly brought up. Yet acknowledging the environmental state principle as one of the basic principles of the Constitution requires conservative approach since once recongnized as the basic principle of the Constitution it becomes the norm of governance and lawmaking. In order to determine whether the environmental state principle could be derived from the current Constitution, it is necessary to define the meaning of the basic principle of the Constitution. Then, we need to study standards of recognizing a principle as the the basic principle of the Constitution because without established standard it could lead to arbitrary interpretation of the principle. The definition of the basic principle of the Constitution is 'the ideological basis of the Constitution to protect basic rights and the guiding principle that governs the Constitution'. However, there is no concensus on the criteria for acknowledging a principle as one of the basic principles of the Constitution. In my point of view, in order to be recognized as the basic principle, the protection of constitutional rights from the state or individuals’ infringement must be its ideological background. The environmental state principle can be defined as "a norm that allows people to live in a pleasant environment with the state’s perception of the environment as the humankind’s living foundation". Along with the definition, the principle could be interpreted as the ideology that is based on the protection from the infringement of the constitutional rights and in result governs the overall constitutional values. Therefore, there is a necessity to recognize the 'environmental state principle' as the basic principle of the Constitution and to suggest solutions to various social problems caused by environmental pollution under the principle.