참정권과 청구권적 기본권의 ʻ제한ʼ에 관한 연구

Abstract

Article 37(2) of the Korean Constitution is a general limitation clause of fundamental rights. This paper examines the exact meaning of ‘limitation’ regarding the suffrage and right to claim. There are three ways to decide the scope of suffrage and right to claim: ① by the Constitution itself, ② by a legislative act, ③ by the Constitutional Court’s interpretation of the Constitution and the legislative act. As the notion of ‘limitation’ entails comparison, the limitation of suffrage or right to claim is possible only when the scope has been formulated before the enactment of the impugned act. In all three ways of deciding the scope of suffrage and right to claim, it is logically impossible for an act to limit and outwork the rights at the same time. When an act outworks the suffrage or right to claim, it can only outwork the rights. Limiting the suffrage or right to claim is possible only after outworking has been completed. A plaintiff may be excluded to have such rights by a legislative act outworking the suffrage or right to claim. However, even in that case, the plaintiff’s suffrage or right to claim is not limited by the legislative act. Only the plaintiff’s right to equality has been limited by the legislation. In this way, whether a legislation regarding the suffrage or right to claim should be justified by the Art 37(2) of the Korean Constitution can be clearly predictable.