헌법재판에서의 입법부와 사법부의 정책판단의 범위와 한계
The Scope and Limit of the Policy Judgement by Congress and the Judiciary in the Constitutional Adjudication
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Constitutional adjudication is the doctrine under which a specific court with constitutional adjudication power may annul the legislation of Congress when it finds them incompatible with a constitution. The legislation is the product of the policy judgement by Congress. Therefore, constitutional adjudication comes down to the policy judgement by the judiciary. If so, is the judiciary superior to Congress in the policy judgement. Generally, Congress has a number of advantages over the judiciary in the policy judgement. It has considerable staff, funds, time and procedures to use to effective information gathering and sorting. But these factors are both its strength and its weakness in taking an objective view of the policy. At this point, notwithstanding the constraints on judicial policy judgement, it may be that sometimes the judiciary do a better work of judging policy than Congress does. When would such a result be possible? We can find the answer from the nature of constitutional adjudication. Constitutional adjudication is the forum that helps deliberation and debate through institutional dialogues between the judiciary and other branches of government. When the judiciary think themselves suffer from institutional shortcomings, it can respect the policy judgement by Congress. These are cases in which Congress has more expertise and democratic legitimacy to assess the given constitutional issue.
Abstract
Constitutional adjudication is the doctrine under which a specific court with constitutional adjudication power may annul the legislation of Congress when it finds them incompatible with a constitution. The legislation is the product of the policy judgement by Congress. Therefore, constitutional adjudication comes down to the policy judgement by the judiciary. If so, is the judiciary superior to Congress in the policy judgement. Generally, Congress has a number of advantages over the judiciary in the policy judgement. It has considerable staff, funds, time and procedures to use to effective information gathering and sorting. But these factors are both its strength and its weakness in taking an objective view of the policy. At this point, notwithstanding the constraints on judicial policy judgement, it may be that sometimes the judiciary do a better work of judging policy than Congress does. When would such a result be possible? We can find the answer from the nature of constitutional adjudication. Constitutional adjudication is the forum that helps deliberation and debate through institutional dialogues between the judiciary and other branches of government. When the judiciary think themselves suffer from institutional shortcomings, it can respect the policy judgement by Congress. These are cases in which Congress has more expertise and democratic legitimacy to assess the given constitutional issue.
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