미국 연방대법원의 위헌 판단 회피 원칙(Constitutional Avoidance)과 그 한국적 시사점 ― 법원의 헌법합치적 해석 및 위헌법률심판제청의 기준과 관련하여 ―

U.S. Supreme Court has generally applied the Constitutional Avoidance Canon or Principle in statutory interpretation since the early 1800s. The Principle acquired its modern form in Delaware & Hudson Co.(1909) decision, and was posited in a broader context within Justice Brandeis's well-known concurring opinion in Ashwander v. TVA(1936). The Court continued to employ the Principle in a variety of statutory cases ranging from free speech cases during 1950s to Voting Rights Act and Affordable Care Act in 2010s. Traditional justifications or rationales underlying the Principle have been judicial restraint as well as deference towards the legislative body, which in turn said to promote judicial independence. The possibility that constructing a statute so as to avoid unnecessary constitutional doubt could lead to a more democratic resolution of constitutional questions is also suggested by other commentators. Although the Supreme Court had labeled the Principle "cardinal" in various occasions, fundamental criticisms against the Principle have been attempted by numerous commentators. According to such criticisms, the Principle cannot succeed in avoiding the constitutional question, does not amount to judicial restraint or deference or even worse, potentially leads to undisciplined reasoning or neglect of judicial duty. Nevertheless, it can be fairly stated that in a constitutional democracy with separation of powers between legislative and judicial branches, Avoidance Principle in statutory interpretation is ultimately inevitable. Therefore, the claims suggesting that the Principle can be disposed of, is somewhat misleading or exaggerated. It seems that focusing on different modes of the Avoidance Principle and its corresponding implications could lead to a more promising path. The analytical pathway suggested by aforementioned discussion can shed some significant light on constitution-conforming interpretation of ordinary courts in Korea. As Constitutional Court 28/06/2018 2011Hunba379 Decision on Military Service Act Art. 88⑴ has explicitly shown, the extent and permissibility of constitution-conforming interpretation of ordinary courts are directly linked to the scope of judicial referral(Constitutional Court Act §41⑴) through which the confrontation with the constitutional question by the Constitutional Court is initiated. Such interpretation, having a structure of ‘Weak-Form Judicial Review’ as presented by Mark Tushnet, can be differentiated by the degree of constitutional doubt which in turn justifies the choice of alternative, constitutional doubt-free construction. Indeed, expressions suggestive of such differentiation can be found in Supreme Court and lower courts decisions, and such degrees are to be regarded as factors having significant impact of interpreting courts' burden of justification. The author suggests that a relatively mitigated standard could be justified in the realms where overprotection of constitutionally sensitive rights are concerned or a potential resolution of the doubt by democratically accountable bodies can be promoted by such interpretation.