헌법재판의 정책결정과 민주주의 원리에관한 검토

The Constitutional Court has reviewed the constitutional validity on decisions and legislations of the President and the National Assembly. It seems to be understood as judicialization of politics and the politicization. However, a critical perspective criticizes this phenomenon by pointing out that the countermajoritan nature of policy-making through constitutional adjudication ultimately destroys the democratic representative system and self-governance. In other words, the theory criticize the deficiency of the democratic legitimacy of the Court. The common approach against this criticism is that the mission of the constitutional adjudication conducts as a protector of the constitutional rights of the minority against the tyranny of the majority. Another approach argues that the role of the constitutional adjudication shall complete democracy by promoting deliberation and debate through the institutional dialogue. We also should note that some of the cases the Court has decided are related to those with some degree of force which enforce or change their policies, rather than the constitutional rights of the minority. In other words, these decisions of the Court are independent of the rights of the minorities. In relation to that phenomenon, this dissertation points out the problem of policy-making by the Constitutional Court, should disscuss critics and affirm of this argument. This paper also emphasizes that a argument on policy-making of judicial review ultimately should be discussed in perspective of democracy and Constitutional court’s democratic aspects reenforced in order to strengthen its democratic legitimacy, in particular, the procedural aspects of system configuration. In addition, in order to solve these problems, I will emphasize that this issue should be examined in terms of the constitutive principles of the Constitutional Court. This is because of a special nature and function of judicial review. Judicial review means that judiciary can invalidate some decisions and legislations of the President and the National Assembly. And the Constitutional Court has this powerful authority. Thus, Constitutional Court will also need to have the legitimacy in its constitution in proportion to the size of Constitutional Court’s authority.