권력 분립 해석론에 관한 연구 -미국에서의 논의를 중심으로-

Separation of powers refers to the separation of the Executive, the Legislature and the Judiciary, with none of the three branches of government able to exercise total power. It is a model for the governance of democratic states. There are three leading interpretations of separation of powers : formalism, functionalism and judicial abdication. Formalism relies on strict interpretation of the Constitution to resolve separation of powers problems. On the other hand, functionalism arrives at standards and balancing tests based on a more flexible interpretation. Judicial abdication suggests that the judiciary should restraint itself from policy decisions of the political branches. Separation of powers has a prophylactic function. Adherence to its principles in structuring governmental institutions prevents abuse of power through limiting undue accretion of power in any one branch of government. No theories other than formalism can guarantee that separation of powers will discharge its prophylactic function. The essential advantage of formalism is that a reviewing court does not have to determine whether one branch’s action disturbs the balance of power among the branches, or whether there are countervailing social interests resulting from separation of powers. But Formalism have two major problems. First, it is likely to produce routine results because of its rigidity. Second, it can reduce governmental effectiveness in modern administrative state. Considering these points, it is wise for a reviewing court to define the nature of legislative power, executive power and judicial power from a realistic point of view.