기본권침해 심사기준에 대한 소고 - 과잉금지원칙의 적용영역에 대한 비판적 고찰을 중심으로 -

The aim of this article is to confirm more clearly the judging criteria about the violation of fundamental rights by the constitutional court. The constitutional court has applied various criteria. Among these, the principle of the prohibition of excessive restriction is mainly used that is criteria about proportionality between legislative purpose and the means. If can not use, The constitutional court has applied other criteria if the proportional criteria is cannot used. But the constitutional court must draw a sharp line among judging criteria according to nature of fundamental rights. Individual subjective rights like freedom are judged by the principle of the prohibition of excessive restriction. But equal protection or equal rights are judged by rationality scrutiny. And each rights related equality are judged by other criteria according to each natures. Social constitutional rights are not subjective rights but objective norms. So, about the violation of social constitutional rights, the constitutional court could decide unconstitutionality if only obvious violations of objective norms.