정치의 사법화 시대의 헌법재판 ―‘헌법적 대화’ 이론을 중심으로―

With the establishment and vitalization of the constitutional adjudication system, the judicialization of politics in which constitutional courts control general state actions for the purpose of protecting the basic rights of the people and engage in highly political issues is becoming widespread. The judicialization of politics is evaluated positively in that it can reflect constitutional values in real politics to establish a desirable constitutional order, but it is pointed out that in institutional situations where the final judgment on constitutional issues is granted to the constitutional courts, constitutional interpretation may be made exclusively by the constitutional courts and other constitutional institutions and citizens may be excluded from constitutional discussions. Therefore, it is important to discuss ways to prevent the adverse function of judicialization of politics in that juristocracy based on judicial supremacy can emerge. It is reasonable to diagnose that such a problem can be prevented if the judicial institution in charge of the constitutional adjudication is fully aware of democratic accountability and strives for a reasonable and consistent constitutional interpretation, but without institutional supplementation to prevent the emergence of judicial supremacy, it may be nothing more than empty optimism. In order to prevent the emergence of judicial supremacy, the most essential way would be to balance power (constitutional interpretation power) by checking the judiciary (constitutional court) that enjoys a superior position in relation to constitutional interpretation. The ideal that constitutional powers should have equal authority in the constitutional interpretation was embodied in the theory of departmentalism. In particular, in order for legislative power to make constitutional interpretation practically possible, the legislature should have an opportunity to reject and refute the interpretation made by constitutional courts, which is called constitutional dialogue theory. The constitutional dialogue theory, which packages judicial checks by the legislature into a positive concept of dialogue and communication in constitutional interpretation, is based on the Canadian constitutional system, and is worthwhile as a practical constitutional alternative to prevent harm caused by judicialization of politics. Of course, constitutional dialogue theory can destabilize constitutional interpretation and obscure respon- sibility for interpretation, thereby increasing social costs. However, given that the social costs incurred when unchecked power institutions abuse their discretion are certain to be significant, the application of the principle of checks and balances among constitutional institutions needs to be recognized in the constitutional interpretation process, and our constitutional system needs to consider the significance of constitutional dialogue.