법률에 의한 기본권의 형성과 위헌심사 - 참정권과 청구권을 중심으로 -

The Constitutional Court of Korea does not apply coherent standard when it reviews the constitutionality of laws restricting suffrage or rights to claim. The Constitutional Court has been appling several standards ranging from ‘proportionality test’(strict scrutiny) to mere ‘rational basis test’. The contents of suffrage and rights to claim are formed by legislation. And the Constitution gives legislator broad power to form the rights. Therefore applying the proportionality test to those rights is inappropriate. On the other hand, the legislative power to form the rights is not so extensive as that to form the social rights. Applying ‘least protection test’ does not fit either. A medium standard of review might be established which functions between proportionality test and rational basis test. This might be named ‘optimal protection test’, because it is meant to burden legislator with the obligation to optimally realize those rights. This test reviews ‘substantial relativeness’ between governmental purpose and chosen measures. ‘Substantial relativeness’ provides a frame wider than that of proportionality test but narrower than that of rational basis test, in which the weight of matters involved and the individual interests concerned should be balanced. This ensures both stability and elasticity needed in judicial review.