정치의 사법화와 헌법재판소의 역할- 주요 사건에 대한 분석을 중심으로 -

Abstract

It has been revealed that the judicialization of politics is not an exceptional temporary phenomenon, but is spreading widely in various countries around the world, along with the proliferation of democracy and the Rule of Law. For the past 30 years, the Constitutional Court of Korea has dealt with cases related to several major political issues such as the cases of 5.18 and 12.12, the impeachment of President(Roh Moo-hyun) case, the administrative capital case, the dissolution of the Unified Progressive Party case, the dispatch of troops to Iraq case, financial and economic emergency action case, and the impeachment of President(Park Geun-hye) case and so on. This article examines the factors of the phenomenon of judicialization of politics which major political issues in Korea were handed over to the Constitutional Court, the responses of the Constitutional Court, and the role and limitations of the Constitutional Court according to constitutional principles. In general, the factors of judicialization of politics in Korea are democratization and distribution of power, construction of system that enables judicialization, enhancement of independence and reliability of the Constitutional Court, expansion of national functions, and increase of conflict due to plural-socialization. These does not seem to be very different from many other countries. The Constitutional Court has regarded itself to play an active role in dealing with these cases focused on political interest. However, they tend to make conclusions that meet or do not at least go against the dominant public opinion, and overall, it can be evaluated that they have made an effort to perform proper role according to the principle of democracy. The expansion of the role of the Constitutional Court can be regarded as a phenomenon that occurs in the process which concentration of power of the past is resolved, and the development of democratization that leads to decentralization and balance of powers. Therefore, it is not necessary to worry about ‘Juristocracy’. The core issue raised in the Constitutional Court regarding the judicialization of politics is harmony with democracy. If the composition of the Constitutional Court is diversified and the constitutional adjudication can be a process of deliberate democracy, the constitutional adjudication and democracy will be able to assist the development of each other. On the other hand, the protection of the constitutional law and the Rule of Law is also the reason for the existence of the Constitutional Court. Therefore, it is always emphasized that the decision of the Constitutional Court should endeavor to ensure a high level of consistency and persuasiveness, as well as to gain people’s trust and support. And paradoxically, what should be preceded by such efforts will be to admit that the boundaries between constitutional adjudication and politics are often vague. Development of democracy and autonomous support and monitoring of the people are necessary in order for the Constitutional Court to maintain its independence in a dynamic political environment and to continue its role of protecting the constitutional law including protection of fundamental rights and power control. The Constitutional Court is given the opportunity and responsibility on its own to contribute to the growth of democracy in Korea through many controversial issues such as the election system, political party system and the restriction of freedom of political expression. By these routine cases, the Constitutional Court can accelerate the virtuous circulation of deliberation through political process and constitutional adjudication.