이익형량에 대한 환원주의적인 접근의 사례: 미국의 단계심사와 한국의 과잉금지 원칙

Abstract

This paper analyzes the American multi-tiered scrutiny used in constitutional review and compares to the Korean constitutional principle of proportionality. The multi-tiered scrutiny of a state action is conducted in a manner that, as the private interest infringed by that state action becomes greater, the greater the public interest the state action is required to accomplish. This relationship corresponds to one of the four elements of the Korean principle of proportionality, namely that of the balancing of interests. Also, the multi-tiered scrutiny requires a greater means-ends fit as the greater private interest is at stake. This requirement of a means-ends fit corresponds to the appropriateness of means and the least restrictive means, the two other elements of the principle of proportionality, and enhances the likelihood that the public interest outweighs the private interest infringed, thereby supplementing the ultimate test of balancing. The requirement that the public interest be at minimum legitimate to ‘important’ or ‘compelling’ also makes sure that the balancing is conducted with respect to a public good as opposed to a public harm. The idea that constitutionality of a state action can be determined by balancing faces a criticism that the quantification of essentially abstract qualities cannot be accomplished in a consistent or binding manner. However, the stare decisis principle provides a comparative scheme where previous decisions provide a binding and consistent rule by which the interest-balancing can produce concrete results.