명확성의 원칙과 포괄위임입법금지원칙

Abstract

Linguistic expressions in the norms should meet the requirement of the definitude principle, which plays an important role for making legal stability in modern rule of law principled countries. Namely, the definitude of law is so necessary for maintaining the formality of law. The definitude of law means that multiple interpretation should not be allowed due to the clarity of law, which is an important principle under the rule of law. The clarity of positive law gives a daily life standard and guideline for the people who receive the law, and further it prevents the executors of the law from exercise unfettered power or discretionary power because of the objective standards that the clarity of the positive law can suggest. In this regard, the meaning of the definitude of the law is that the executive branch shall exercise its power to impose limitations on the basic rights of the people based on the clear and definite scope of its derivative rights, and also the courts must apply the clear and definite yard sticks or standards when they decide the constitutionality of the laws. Based on the question of how to understand the definitude principle by the Korean Constitutional Court and the Korean Supreme Court, this article examines the scope and meaning of the definitude of law principle, and the relation between the definitude of law principle and the prohibition against unlawfully broad delegation of legislative powers. In addition, this article tries to take a close look at the constitutional grounds for the principles, the content of the principles, and the Courts' understanding of the principles. In conclusion, although the degree of the definitude should be decided by the legislative branch which has the legitimate power from the people, the legislative branch shall also consider the parties' interests and constitutional values involved in a case, and shall employ balancing test between public interests and private interests when they are conflicting.