헌법재판소의 전략적 헌법담론 -헌법재판소 2009.09.24. 2008헌가25 결정과 2009.10.29. 2009헌라8 결정에서의 헌법적 논증에 대한 비판-

The system of constitutional adjudication and constitutional policy-making has been globalized to supplement majority rule policy-making which had caused a legislative failure or executive failure. In playing a policy-making role through constitutional adjudication, the Constitutional Court of Korea takes a strategic approach to reflect its decision in other governmental branches' policy-making. This approach can be made by forming a strategic constitutional discourse in which political environment around the Court might be considered. We can choose the Capital Relocation Case of 2004 as one of the most remarkable examples which affirmatively use the strategic constitutional discourse. Beyond this case, the Court has consistently utilized the strategic constitutional discourse, even under the current Lee Myung-Bak government. The decisions of the Courts regarding the Assembly and Demonstration Act and the Media Act cast a doubt that the complicated strategic constitutional discourse was sophisticatedly used to consider political situation in deciding cases. In this situation, we should read the decisions of the Court in the context of politics beyond constitutional doctrines. Specially, this situation makes a huge problem that the use of the strategic constitutional discourse just might uphold all activities of the current government which holds absolute political majority in the political sphere. However, the system of constitutional adjudication should acts as a protector of fundamental minority rights against majority tyranny. In other words, the constitutional policy-making is arguably legitimate when it serves to protect the interests of discrete and insular minorities. Therefore, we need a critical study on the utilization of the strategic constitutional discourse by the Constitutional Court.