통시적 자유보장과 사법적 파상력

Abstract

In a constitutional complaint case regarding a provision of the Federal Climate Protection Act that sets carbon dioxide reduction standards, the German Federal Constitutional Court confirmed that Article 20a of the German Basic Law is a legal norm that has binding force on the legislature, and through the interpretation of the above provision, clarified the inherent nature of the fundamental right called “intertemporale Freiheitssicherung” and ruled that the provision in question has a prior effect similar to an infringement on future general freedom, and therefore requires a constitutional justification similar to legislation restricting fundamental rights, but does not meet the requirement of proportionality to evenly distribute the burden of carbon dioxide reduction across eras and generations, and therefore is unconstitutional. In this article, in an era where climate disasters are becoming a daily occurrence, not just a phenomenon, but a global phenomenon, including in Korea, the rule of law state and its (constitutional) judicial institutions, whose raison d’etre and goal is to guarantee universal and equal basic rights for the people, must deeply reflect on the guarantee of ‘sustainable’ basic rights. Based on this premise, we will examine the gist of the decision on ‘intertemporal freedom guarantee’ presented by the German Constitutional Court in its subject decision, its meaning, and implications. In addition, we will compare and analyze the relevant parts of the recent climate lawsuit decision of the Constitutional Court of Korea and the German decision. Finally, in the face of the unprecedented catastrophic situation of the global climate disaster, it is argued that we need to reflect on and introspect the ‘topological privilege’ of the legal paradigm (pre-understanding) centered on ‘human dignity and liberal fundamental rights based on autonomous reason’ that not only justified the human-centered carbon economy that was the symbol of the development and prosperity of the nation-state, but is still deeply embedded in our Constitutional Court’s climate litigation decisions and judicial practice in general, and that we should move forward with a great legal theoretical transformation through this.