제도보장 관련 헌법재판소 판례에 대한 관견

Constitutional court of Korea have dealed with various cases related to institutions guarantee(Einrichtungsgarantie). The constitutional court distinguishes institutions guarantee as a minimum guarantee from fundamental rights guarantee in accordance with the traditional institutions guarantee theory. Institutions guarantee theory is not only a theory but also practical tool for constitutional adjudication in Korea. But there are some criticisms against the traditional theory. It is time to plan development of institutions guarantee theory for the future. The review of constitutional precedents is a kind of work to do. Some judicial precedents are checked and evaluated in this paper to find overall position of the court on institutions guarantee and to make alternative plans to solve some judicial problems. The precedents are related to primary themes of institutions guarante, for example, distinction between institutions guarantee and fundamental rights guarantee, range and legal effects of institutions guarantee. The distinction between institutions guarantee and fundamental rights guarantee in the precedents is reasonable and it is not contradictory despite double character of fundamental rights. Some institotuins were acknowledged the subjects of institutions guarantee in judicial precedents and they were valid judgment because of the implicit value of the institotuins and the form of related provisions. The misuse of the principle of minimum guarantee by some constitutional judges must be criticized. But the criticism is not against the principle but against the misuse in itself. It will be necessary to study on the improvement of institutions guarantee and to reflect the result of the study in constitutional judgement in Korea.