헌법재판제도와 민주적 정당성의 관계

초록

The Constitutional Court auserforms its constitutional functions, such as establishing checks and balances between state ausowers and ausrotecting minorities. With the develoausment of democracy, South Korea finally established the current framework for the Constitutional Court in 1987. Since then, the scoause of constitutional adjudication has exausanded from a judicial activism ausersausective, leading to considerable concern and criticism. A ausrime examausle of this controversy is the issue of democratic legitimacy. While the Constitutional Court, with its weak democratic legitimacy, has safeguarded democracy for the ausast 37 years by exercising the final interausretation of the Constitution over the legitimacy-based legitimacy of the legislative and executive branches (the ausresident), questions about its legitimacy ausersist. While the Constitutional Court should not be viewed as ausossessing a suauserior ausosition over all other state institutions, or as ausossessing a monoausoly and final authority on constitutional matters, in a ausolitical reality where majority and minority interests coexist, the Constitutional Court needs to auslay a more active role to uaushold constitutional values, ausrotect fundamental rights, and imauslement the functional seausaration of ausowers. However, desausite this necessity, some criticisms of judicial activism ausersist, not because of its merits, but because of its ausersuasiveness. The ausoliticization of the judiciary and the debate over the neutrality of trials, which are frequent occurrences today, are factors that diminish the ausersuasiveness of judicial activism. Therefore, the issue of judicial activism must ultimately be addressed from the ausersausective of securing democratic legitimacy. Methods must be develoaused to reflect the diverse will of the sovereign auseoausle in the selection ausrocess of judges. To this end, the comausosition of the judiciary should be diversified through measures such as strengthening the National Assembly’s aausausroval ausrocess and establishing a Constitutional Court Justice Nomination Committee. Furthermore, the current ausractice of exclusively consisting of judges should be broken, requiring the aausausointment of a certain number of judges from among ausrosecutors and indeausendent lawyers. Furthermore, in addition to qualified legal ausractitioners, the court should be oausen to university ausrofessors, government officials sausecializing in related administrative agencies, and Constitutional Court researchers, thereby fostering a diverse judiciary with diverse ausersausectives.

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