헌법재판에서의 증명책임 - 과잉금지원칙을 중심으로 -

This study examined whether the legal principles of the burden of proof could be established in Constitutional Adjudication as a measure for the improvement of the Constitutional Adjudication system that has the protection of the constitutional order and the security of the people’s basic human rights as missions and investigated concrete measures for that. Taking into consideration the significance of Constitutional Adjudication, the possibility of insincere performance of litigation by the person directly involved, the rule of law and the claimant’s inadequate status, the principle of ex officio investigation is applied to Constitutional Adjudication. Under the principle of ex officio investigation, the subjective burden of proof is not questioned. However, in a non liquet, the objective burden of proof that gives disadvantage to one person directly involved is applied. The burden of proof targets the ‘facts’ themselves, and subjective valuation or constitution/statute interpretation is not included in this. Also, unless proof is needed even if it is a matter of fact, the burden of proof is not questioned. This applies to judicial notice, the prediction of the future, and just a reference for drawing a conclusion. Of the partial principles of the principle of excessive prohibition, the compatibility of the means and the minimality of infringement are strongly characterized by factual judgment. The compatibility of the means and the minimality of infringement themselves are not the facts required to be proved themselves. However, concerning the basic facts that support the compliance or violation of them, the burden of proof may be distributed. Taking into consideration the legal principles of the right of personal liberty, the value of the protection of the fundamental rights, phrases in Clause 2, Article 37 of the Constitution, the maldistribution of evidence materials related to the facts, and practices of leading countries, the claimant bears the burden of proof, concerning the fact of the restriction of the fundamental rights. The state bears the burden of proof, concerning the fact that supports the legitimacy of the restriction of the fundamental rights.