한국 헌법상 면책특권의 제한 가능성과 방식

Abstract

The immunity is the privilege that is to be recognized to legislators. This privilege is recognized for legislators in order to correctly perform legislative activities and parliamentary control activities as a representative of the entire population. Therefore, it makes sense that the scope of the immunity is widely understood as a general rule. And it is desirable that the control of the immunity is to be fulfilled by the election. But the restriction of the privilege is necessary because it is not the absolute privilege. It may need to be limited above all by honor or privacy rights, and the public interest such as prohibition of distributing false facts. These conflicting rights or public interest and the immunity are to be realized harmoniously. To do this, the principle of proportionality which is essentially balancing of legal interests, should be applied. In this process, the particularity of the immunity should be taken into account in terms of democracy and the separation of powers. The balancing between the immunity and the conflicting rights or legal interests should be carried out by the National Assembly, as a rule, and the control of the balancing must be performed by the Constitutional Court. But for limitation of the immunity, it is preferable that the people do this always and consistently by the exercise of the freedom of political expression.