법률에 의해 구체화되는 기본권의 심사기준과 심사강도－ 헌법 제25조의 공무담임권을 중심으로-

The standards of review must be chosen after identifying issues and characters related to contents of specific constitutional rights. Especially, one needs to articulate the characters of constitutional rights; whether a certain right can be involved in a negative and defensive function (protective rights) to protect the holders against the state interferences or to allow holders to ask for substantive benefits (rights to social benefits). As such, if the relevant rights are categorized as protective rights, the judicial review must apply the principle of prohibition of over-restriction; otherwise, it must apply the principle of prohibition of under-protection. And the reviews of equal rights must be involved in the principle of prohibition of arbitrary exercise or the principle of proportionality. In this context, the characters of right to take the office can be analysed in the following way. The rights to be elected and the rights to assume the office are categorized as the equal rights, and the rights not to be discharged without justified reasons and the rights are considered to be within the category of the protective rights. Therefore, the standards of review must be in accordance with the principle of proportionality or the principle of prohibition of overrestriction. But, it is not reasonable that only those principles can be applicable to this case. Since the restriction of constitutional rights should not empty their contents, concrete principles drawn on objective value orders, for example, the rights to be elected on equal and general footings and the principle of merit system can be understood as the important standards of the constitutional review. Gradualization in intensity of constitutional review matters in the phase of review over a resonable relation between end and means and necessity of right restriction. But, the constitutional court considers the review of a reasonable relation between end and means as a principle of ‘void for vagueness’, so that the gradualization in the intensity of constitutional review is more important in the course of reviewing the necessity of right restriction. The court must consider whether plausible alternatives are available in reviewing the necessity of right restriction; in this case, the intensity of review depends on at what level and on what grounds those alternatives are articulated in the course of reviewing whether there is less restrictive measures to achieve the purpose of legislation. The rights to become a candidate and the rights to be elected on equal footings and the rights to take office equally do not allow the legislature to have broad delegation due to special features such as the framework of reservation of laws and realization of the public interests in the sense that those are aimed for equal protection. In this case, the normativity control can be made not only in the context of quantity in a strict sense but also in the sense of quality. In addition, the review can be stricter because the rights for the public officials not to be discharged without justified reasons are more important than the rights for the public officials not to be suspended without justified reasons. However, in the case of the rights for the public officials not to be deprived of their status, highly intensitive controls are required because the loss of status is involved in serious encroachments of legal interests. On the other hand, in the case of the rights for the public officials not to be discharged without justified reasons, more generous controls in the perspective of persuasiveness of right restrictions are required. But, although the intensity of review can be gradualized according to contents of subjective rights in specific cases, such gradualized standards can be applied flexibly according to the degree of regulation effects.