기본권 제한 심사에서 공익의 식별

In the constitutional case where violation of basic rights is questioned, objects of balancing should be identified before interest balancing. If that identification is wrongly done, than whole interest balancing goes wrong. Misbalancing happens not only when interest that should be considered is omitted, but also when interest is counted as something which is entitled to be weighted even though it is not. And what needs particular attention is the danger of counting something as public interest when there is not really interest that satisfy the condition of ‘public interest’. To avoid this danger, The definite description theory of Bertrand Russell is very useful, because the theory analyses underlying structure of denoting phrase which seems on its surface form to denote something really exist, and because it can help to avoid logical fallacy which can easily committed when we use concepts relating to public interest. The logical analysis of a statement about public interest shows that the following identification process is necessary. First, the kinds and the ranges of interests pursued by a given legislation should be identified in comparison with alternative legislations or alternative state of affairs. Second, that interest should satisfy following three negative condition to be public interest. (i) It is not based on unconstitutional value. (ii) It is not insulated from basic right holders’ interest. (iii) It does not favor only some of members of the state. This identification can be performed in any steps of scrutiny when necessary and appropriate, before actual balancing begins. The systematic clarification of public interest identification can be helpful in pointing out whether a particular balancing is unadequately done, and in providing sound ground of balancing. Because this method provides a way to coordinate interests in the same category and abstraction level, namely of common interests of all individuals.