사법심사기준으로서 실제적 조화 원칙

When two constitutional norms with equal validity conflict in a specific circumstance, an appropriate methodology of solving that conflict is needed to recognize the validity of both of them. In situations of conflict of norms, the notion that emerged with the aim of refraining from an all-or-nothing style choice to abandon one of them is so-called the principle of practical concordance(Prinzip der praktischen Konkordanz). The principle means that if valid two legal interests conflict and collide, one should not sacrifice one of them through abstract balancing. In this situation, one should try to find equilibrium proportionally on a case-by-case basis. This principle that is a conception developed in Germany has been widely accepted in our constitutional practice and constitutional jurisprudence. The Constitutional Court and the Supreme Court refer to the principle in their decisions and rulings, and the constitutional academia also uses the principle for a constitutional interpretation or a solution of fundamental rights conflicts. There is a consensus as to whether the principle is a goal that should be considered in the event of a conflict between constitutional norms. Nonetheless, there still remains considerable ambiguity as to the specific content of the principle as a judicial review standard and its relationship with the principle of proportionality. This article focuses on the fact that the principle of practical concordance is applied in the constitutionality review of a legislation that resolves fundamental rights conflicts in our constitutional practice. Firstly, it draws implications from the development and use of the principle in Germany. (Ⅱ) Then, it reviews ways of using the principle in our constitutional practice and constitutional academia. (Ⅲ) Finally, it suggests specific elements to be considered in applying the principle in judicial review. (Ⅳ)