기본권 관련 입법에 대한 입법형성의 한계와 헌법재판 - 헌법재판소 판례에 나타난 정당성 심사기준에 대한 검토를 중심으로 -

Abstract

This article examines the limits of legislative formation in legislation related to basic rights, focusing on the Constitutional Court’s criteria for the review of legitimacy. The Constitutional Court respects the legislative formation rights of the legislature as much as possible under the separation of powers principle. But it judges the legislation as unconstitutional when it violates the Constitution through the application of the standards for the examination of its legitimacy. These criteria depend on the nature of the basic rights. Basic rights can be divided into basic rights of freedom, equal rights, suffrage, basic rights of claim and social basic rights. The legislation of the basic right to freedom appears to be a restriction of the right to freedom, which the Constitutional Court reviews based on the principle of excessive prohibition stipulated in Article 37 paragraph 2 of the Constitution. In the case of legislation that concretes the basic rights, the judgment is based on whether the constitutional limit has been deviated or not, and the relatively broad legislative formation rights are recognized. The legislation for performance of national obligation for protect fundamental rights is assessed by the prohibition of minimum protection principle. In addition, legislation related to social basic rights is judged by whether the state has taken the minimum steps necessary to ensure a humane life or not. This paper reviewed the judging criteria of the Constitutional Court on legislation related to basic rights. Since the constitutionality of legislation related to basic rights is decided by the Constitutional Court, it is difficult to guarantee basic rights if the screening standards are not appropriate. Therefore, it is necessary to develop specific criteria for assessment based on the characteristics of individual basic rights. By securing the validity of constitutional trial, reliability of the Constitutional Court can be improved and basic rights of the people are guaranteed.