헌법상 적법절차 원칙 - 헌법재판소 결정에 나타난 적법절차 원칙 적용의 문제를 중심으로 -

Abstract

The due process of law has evolved into a constitutional principle for the protection of human rights in the Anglo-Saxon legal history, and is stipulated in the Fifth and Fourteenth Amendments to the US Constitution. The U.S. Supreme Court, through the interpretation of the 14th Amendment, has protected the liberties and rights of each citizen against the exercise of arbitrary power by the federal and state governments. Procedural due process requires the State to ensure a notice of the deprivation of liberties and rights and a meaningful hearing procedure to fully defend his rights as a certain safeguard in case the State restricts the life, liberty or property of an individual. The procedural due process requires that not only the procedures prescribed in advance should be followed when the basic rights are restricted, but the procedures must also be appropriate to protect the fundamental rights. However, at this time, the appropriateness of the procedure may be determined individually for each specific case by the importance of the private interests of the subject of the fundamental rights to be restricted, the ability of additional procedures to increase the accuracy of the fact-finding and the public burdens required for the procedure. Substantive due process requires that the liberties and rights guaranteed by the 14th Amendment are not only the Bill of Rights stipulated between the First and Eighth Amendments, but also the liberties and justice deep-rooted in American history, culture and society. It means fundamental rights derived from fundamental constitutional liberties. Accordingly, not only economic liberties but also rights not listed in the Constitution, such as privacy, are guaranteed by the due process of law of the 14th Amendment. These fundamental constitutional liberties and rights are not unjustly restricted by legislators, but can be restricted in cases necessary for the compelling public interest. The Korean Constitutional Court interpreted the due process of Article 12 (1) and (3) as an independent principle of our Constitution. According to the principle of due process, the sates action by public authority requires not only formal procedures but also substantive legal content to be rational and justified. The subject of due process is not limited to criminal proceedings, but applies to all state actions, especially legislative actions. The Korean Constitutional Court considered that the law enforcement procedure was irrelevant to the limitation of constitutional rights, and was different from the proportionality. However, according to the textual and systematic interpretation of the constitutional provisions, due process should be applied primarily to the freedom of the body. Rather than applying due process for all state operations, due process should be applied to the limitation of constitutional rights, especially related to the limitation of the body. In our constitutional system, limitation of constitutional rights are guaranteed by the retention of laws and the principle of proportionality. Therefore, the principle of procedural due process must be actively discussed and expanded as a screening criterion for judging the appropriateness of procedural basic rights. It will be the operation of due process according to its nature.