입법권의 남용과 제한에 대한 연구

Abstract

State power shall be exercised for the purpose of guaranteeing and protecting the freedom, life, property, etc. of members based on the law, as prescribed by law. In addition, the exercise of power must remain within the scope prescribed by the law, which can be said to be the principle of the rule of law. If state power exercises power beyond the scope delegated by the people, it is merely an exercise of unfounded power and for the interests of the powerful themselves. Therefore, the legitimacy of state power will be recognized if it is exercised only within the scope of the delegated and legal scope. However, even if it is the exercise of power within the scope of the law, it is a problem if it is for the purpose of maintaining and extending the power of the power of the person or ruler and the surrounding power. The original rule of law was to protect and guarantee the freedom and rights of the people against infringement of their freedom and rights caused by abuse and abolition of power from the state. Therefore, it is the rule of law that emerged as the principle of restriction and abuse of the state's exercise of power, not in the form of law. However, formal rule of law experienced frequent violations of people's freedom and rights by the form of law, such as laws by Nazi Germany or the Soviet dictatorship in the 20th century, Park Chung-hee's Restoration Constitution, and emergency measures. For this reason, the rule of law is now not limited to the formal aspect of the law, but has come to demand that the content be consistent with the actual definition. This can be said to be a change from formal rule of law to practical rule of law. In other words, even if state power is exercised in the form of a law, it will be difficult to be recognized as a violation of the rule of law if the law violates people's freedom and rights by law as a means of maintaining power. Therefore, according to the experience of dictatorship infringing on the freedom and rights of the people by the form of the law since the 20th century, the law should not remain formal but should be a law that is justified as a law that can protect the freedom, rights, and property of the people. There is a limit to legislative power within the scope delegated by the people, and there are clearly limitations and limitations that even if it is the exercise of power based on law, it cannot exercise power beyond the scope delegated. Therefore, legislative power should be limited to guarantee and protect the purpose of the entire community and the freedom and rights of individuals, and therefore the exercise of legislative power should have limitations.