헌법재판소는 민주주의의 수호자인가

For long, the these: “constitutional court is a guardian of democracy” has been a kind of conventional wisdom. This article deals with the question, whether constitutional court could contribute to the transition to and the consolidation of democracy actually and could be justified as a guardian of democracy normatively from the point of institutional and functional view. On the one hand, constitutional court may contribute to the development of democracy through the control of unconstitutional exercise of political power, judicial guarantee of fundamental human rights, removal of undemocratic laws enacted in the period of authoritarian regimes, etc. However, constitutional court occasionally tends to avoid its role as a veto player in political games or make decisions justifying the exercises of political power, whose constitutionality are very suspicious. Comparatively, the constitutions of established western democracies don’t always have the constitutional court system. And owing to the recently widespread phenomena of judicializing (mega-)politics, the problems with highly political character, which have to be resolved in the public sphere, are handed over the constitutional court. As a result, the consolidation of democracy is to be delayed or obstructed. On the other hand, the historical transition to democracy in the new democratized countries made the introduction of constitutional review and the establishment of constitutional court possible. The historical evidences teach us that only in stable and mature democracies the constitutional court could fulfill its functions faithfully. In order to be qualified as a guardian of democracy, constitutional court has to make sincere efforts to consolidate democracy, which gave birth to and brought up constitutional court. Above all, constitutional court has to make a decision faithful to constitutional values. If constitutional court serves partial interest or makes efforts to gain the favorable position in the political power game, the court will take responsibility for the recession of democracy. In the end, the court will lose the trust from the people and even its raison d’etre.