헌법재판에서 환경권의 규범력 ― 헌법재판소 선거소음 위헌결정의 평석을 겸하여 ―

Abstract

The legal issue of how the constitutional rights to a healthy and pleasant environment (hereinafter referred environmental rights) in the constitution can independently have its own normative powers is still under debate. Recently, the Korean Constitutional Court ruled that the Public Official Election Act’s noise restriction standards on loudspeaker during public official election campaigns was insufficient, thereby violating the duty to protect the environmental rights (case: 2018Hun-Ma730). In particular, in order to establish a theory on environmental rights, this article examines the nature and protection area, and realization structure of the environmental rights. Environmental rights as comprehensive rights have both aspects of protective function against the infringement of liberty and the formative aspect to guarantee the social minimum. Environmental rights guarantee the pleasant life through the medium of pleasant environment. With the normative force of environmental rights should be qualified the plaintiffs in administrative litigation and in constitutional complaints. The criteria for reviewing violations of the duty to protect the people’s environmental rights shall be whether the State, at least, took the minimum protective measures in an adequate and efficient manner. It means the principle of prohibition of under-protection. This principle needs to be maintained in terms of respecting the preferential judgement of legislators. However, legal interets, such as protection of widespread, irreversible environmental damage should be further considered in the balancing test. The closer the basic demand as an ecological existence to the conditions for survival, the more essential the environmental rights are, and the stronger the review is necessary. In the above case, the Constitutional Court strengthened de facto the criterion of the precedents and therefore declared the State has underperformed in its duty to protect fundamental rights as it did not take the minimum protective measures in an adequate and efficient manner. The Constitutional Court’s decision is subject to criticism in the process of fact finding related to the possibility of infringement of environmental rights, legal coherence with precedent of Constitutional Court. Nevertheless, as a result, it raises expectations for strengthening the function of protecting environmental rights in the Constitutional Court.