우리헌법상 방어적 민주주의의 독자적 인정가능성과 존재의의 ― 일반적 법률유보조항과의 관계를 중심으로 ―

Militant democracy is regarded as the most influential theory which indicated intrinsic vulnerability of democracy and suggested a normative alternative for the sake of preserving it. However, some argues that militant democracy inevitably poses a risk of being abused for political purposes. It is required to explore whether militant democracy can be acknowledged as an independent constitutional principle in our Constitution. According to Article 37 Section 2 of our constitution, the freedom and rights of citizens may be restricted by law when necessary for national security, the maintenance of law and order or for public welfare. Therefore, it can be asked if militant democracy, which limits the freedom and rights of citizens to protect the basic free and democratic order, is additionally required. Article 37 Section 2 of the constitution can be applied toward those who threats democracy because the maintenance of law and order includes the basic free and democratic order. By the way, limiting the freedom and rights of citizens through the general legal reservation article is possible only by law. As a result, the general legal reservation article can protect democracy only when the legislature elected by majority keeps commitment to democracy. The paradox of democracy, which means that the principle of majority rule may lead to democracy's self-destruction, cannot be handled by the general legal reservation article which premises the rule of majority. Militant democracy, which sets constitutional limits even toward the democratic majority, has its unique significance in our constitutional order. However, the significance of militant democracy should not be exaggerated. Militant democracy should be understood as an exceptional principle which can be applied only when the principle of majority and electoral democracy can not function properly.