行政과 司法의 民主的 正當性 確保를 위한 公法的 課題

Abstract

The decision by the Constitutional Court to impose a presidential impeachment is an incident of the Constitution of the Republic of Korea. The background and causes of this situation are related to the corruption by the president's aides, the power abuse of the Blue House secretariat, and the exercise of unusual government power. The candlelight rally showed the mature democracy of the Republic of Korea by proceeding to the nonviolent peace rally, and it became an important opportunity to imprint the importance of democratic sovereignty. In this situation, discussions on the revision of the Constitution are in full swing. Although the power structure is the central issue of the discussion of constitutional amendments, all agree that the institutional measures should be taken to improve the concentration and monopoly of the state power. More important, however, is how to secure the democratic legitimacy of state power. Abuse and corruption of state power come from the failure to secure such democratic legitimacy. In Germany, the theory of public law has been developed around the principle of the rule of law for a long time, but in recent years democratic legitimacy orthodoxy has been newly illuminated. The traditional democratic legitimacy theory, which consists of institutional and functional democratic legitimacy, organizational and personal democratic legitimacy, and substantial democratic legitimacy relating to the matter of contents, has played an important role. Today, however, a new democratic legitimacy orthodoxy is emerging. What is noteworthy here is the emphasis on procedural legitimacy including acceptance, participation and disclosure. In modern administrative countries the democratic legitimacy of pluralistic administration is important. In recent years, there have been an increasing number of cases in which national tasks are entrusted to private organization or civilians. Some suitable measures should be taken to secure democratic legitimacy. In this regard, functional autonomous administration is emphasized. In Germany, the issue of democratic legitimacy is addressed in connection with the selection of judges. In comparison with major developed countries, the selection of judges in Korea is somewhat lacking in the participation of the parliament in terms of securing democratic legitimacy. In particular, the Constitutional Court is a constitutional guardian and a political judicial body that has to reflect pluralistic interests. In this respect, the process of appointing the judges of the Constitutional Court should secure sufficient democratic legitimacy. Although the decentralization is emphasized in the discussion of constitutional amendment, it is not proper to construct the ordinance, which is the derivative source of law, equal to the statute in the light of the system and structure of norms, especially in view of democratic legitimacy orthodoxy. Rather, it should strengthen participatory democracy such as acceptance, participation and disclosure to secure the democratic legitimacy of the local autonomy system. As can be seen from the discussion of the discontinuation of Shin-Kori Nuclear Power Plant No. 5 and 6 and the discussion of nuclear power plants, the process of deliberation by the Committee aimed at gathering public opinion should also be approached from the perspective of democratic legitimacy orthodoxy. It is regrettable that the important issues related to the country's energy policy are not fully discussed in the National Assembly. The relevant provisions should be laid out in order to establish the legal basis of the Committee and ensure procedural justification for large-scale public projects closely related to the lives and safety of the people.