2008년 미국산 쇠고기 수입고시 위헌확인 심판청구의 적법요건 판단에 대한 비판적 고찰

In 2008, right after the Korean government’s decision to lift the import ban on the U.S. beef, false rumor about the U.S. beef and the so-called human-mad-cow disease (vCJD) so rapidly spread among people. Unfortunately, it stirred up nationwide and furious anti-U.S. beef and anti-government movements. On 26 December 2008, the Korean Constitutional Court recognized the justifiability of constitutional complaints regarding the 2008 governmental notice for the U.S. beef imports (Korean Constitutional Court 2008. 12. 26. 2008Hunma419․423․436). In the case, petitioners argued that: (i) the U.S. beef may be contaminated by the so-called mad-cow-disease (BSE); (ii) eating the U.S. beef may cause vCJD; (iii) the 2008 governmental notice for the U.S. beef products imports, that is the government’s decision to lift the import ban on the U.S. beef, impairs complaints’ rights protected by the Constitution; and (iv) the government’s decision is unconstitutional. Even though there was no scientific evidence which can support the petitioners’ arguments, the Court recognized the justifiability of their constitutional complaints. It seems that the Court ruled the decision based on hypothetical risk which can not be assessed by any scientific method. This Article argues that the Court should have decided the judgement based on objective risk which can be assessed by available scientific evidence. If the decision concerning the justifiability of constitutional complaints regarding risk regulation policy can be based on hypothetical risk, the Constitutional Court may have judicial review on any risk regulation policy. Obviously, it can not be justified by the separation of powers. This Article argues that the Court’s judicial review standard on risk regulation policy must be based on sound scientific evidence.