목적의 정당성을 비례 원칙에 포함해야 하는근거와 그 역할

This paper, while critically examining some views that claim against the purpose legitimacy test, tries to identify the content and role of the test. In conceptual respect, since public interest is one of the logical essential elements, whether some interests belongs to public interest itself needs to be normatively reviewed. Considering the separation of powers order, the fact that basic rights can be violated not only by excessive means but also by illegitimate purpose shows that, in order to capture all modald of these violations, the constitutional validity of the legislative purpose is not to be regarded as legitimate absolutely but must be demonstrated as such through argument. Purpose legitimacy test plays two roles. One role is to denote the range of interests which is pursued by a given state action compared to alternatives. The other is to examine whether the interests are potentially eligible to be grounds for limiting basic rights. The two roles can be called as identification of public interest. If we explicate Constitutional Court decisions under this theoretical conception, it shows that including this two roles in proportionality principle makes the proportionality be performed on more clear and elaborated arguments.