독일연방헌법재판소의 판결에 투영된 이익형량의 원리

The principle of proportionality can be understood as a tool for arguing the rationality of the interrelationship between means and aims when a specific means is concerned with various opposing end values. Analysis according to the principle of proportionality is understood as a constitutional tool designed for the purpose of increasing efficiency in protecting individual rights. The German Federal Constitutional Court, which developed the principle of proportionality into a basic constitutional principle through its judgment, has already recognized that the principle of proportionality has constitutional status. The German structured proportionality test consists of four stages. The first step is legitimacy, which examines whether the aim of the restriction is legitimate. The second step is suitability, which examines whether an action or measure taken by the state is appropriate to achieve the state’s legitimate aim. The third step is to examine whether other less intrusive alternative means exist in order for the state to achieve such a legitimate aim. The fourth step, also understood as the law of balancing, examines whether the effect of an action or measure taken by the state is balanced or not excessive in relation to the importance of the state’s aim to be achieved therefrom. In the case of “Esra” of the German Federal Constitutional Court, the conflict between the right of personality and freedom of art are evaluated as having similar priorities, and in the case of “Lüth”, the higher priority of the interests of others is examined in relation to freedom of expression. As such, when there is a conflict between two fundamental rights or between fundamental rights and other public interests, the highest possible level of clarity and rationality can be achieved through the process of balancing according to the principle model. For this reason, the process of balancing is considered as the last bulwark to guarantee freedom and rights.