헌법재판에서의 최근의 동향과 전망- 위헌법률심판의 대상의 확대화 경향을 중심으로 -

Traditionally defined as a philosophy which motivates judges to depart from strict adherence to judical precedent in favor of progressive and new social policies. Judical activism has garnered both harsh criticism and ardent support in recent years. Judicial restraint that judge should defer to legislative or executive measures unless they are clearly unconstitutional, has a long political and academic pedigree. The concept of judical restraint continues to generate both fierce fidelity and criticism. It is often assumed that liberals like judicial activism and conservative like judicial restraint. Although much of the discussion and study of judicial activism focuses on decisions overturning statutes, Scholars have offered an incredible list of possible components and definitions of judicial activism. The following elements emerge as signs of judicial activism: overruling actions by other federal branches or state governments, failing to follow textual meaning, departing from history or tradition, issuing maximalist and not minimalist holdings, using broad remedial powers, basing decisions upon partisan preferences, failing to follow an originalist view of the Constitution, issuing an opinion inconsistent with prior precedent, exercising power beyond a court's jurisdiction, creating new rights or theories, altering prior doctrines or interpretations, establishing substantive policy, and failing to use an accepted interpretative methodology. The subject of adjudication on constitutionality include formal statutes legislated by the National Assembly, as well as emergency presidential orders, treaties, and universally accepted international laws. Recently the Constitutional Court decides that the subject of adjudication on constitutionality include the consuetudinary law and the emergency measure under the Yushin Constitution(the Revitalizing Reforms Constitution) because of effectual equivalency their formality of law. And the Constitutional Court does not reject the request on decision of unconstitutionality in application and interpretation. As above mentioned, the tendency of expansion of the subject in the Adjudication on the constitutionality of statutes would be hard to justify in from the point of view judical activism.