한국의 헌법문화와 헌법재판소의 헌법해석 - 미국 연방대법원의 헌법해석과 비교 -

Today, despite of the differences in the various legal systems and legal cultures, modern democratic constitutionalism emphasized the importance of the constitutional review and constitutional interpretation. South Korea and the United States has operated a culture of active judicial review by the autonomous law separated from politics. This article analyzes the following contents applying to the comparative constitutional and comparative constitutional interpretation. First, it is examined for any relationship between constitutional culture and either constitutional interpretation or constitutional review (Ⅱ). Second, I may compare the legal formalism and anti-formalism as the basic attitude of the constitutional interpretation of the Supreme Court, and review Balkin's ‘Living Originalism’ as the purposive interpretation differentiated from conventional Originalism (Ⅲ). Third, I may review its properties and contents of purposive interpretation which the Constitutional Court has adopted by other Constitutional court and the legal formalism of the U.S. Supreme Court(Ⅳ). Finally, I may seek to find the implication which Constitutional interpretation & its culture of U.S. Supreme Court can give the Constitutional Court(Ⅴ). Korea has operated an autonomous legal institution which law is separated from politics and the principle of the rule of law is established in due to the political democratization. The Constitutional Court has been operating despite the German Constitutional Court based on the fundamental principles of legal formalistic interpretation in according to the Constitution interpretation of the United States Supreme Court. This is an evidence of the influences of the United States Constitution by the Constituent since 1948. Actually, Constitutional Court has interpreted the Constitution through a purposive interpretation of the three types protection requirements of fundamental right which determine the rule of law in the constitutional litigation. In order to develop our constitutional order and constitutional culture is critical issues whether and how to strengthen the democratic legitimacy of the judiciary which is institutionalized justice's cutting standards and methods, and civil actively take part in judicial proceeding in public.