세대간 정의와 평등심사 - 기후소송의 평등이론적 함의 고찰을 겸하여 -

Intergenerational justice is a topic of considerable debates in the contemporary era. This is due to the fact that there are numerous instances where the interests of different generations collide, leading to conflict and tension. The climate crisis has emerged as a prominent example of intergenerational justice. This article explores the potential for constitutional adjudication to serve as a vehicle for the practical realisation of intergenerational justice. The objective of this article is to examine the ongoing climate litigation as a case study in constitutional review, with the right/principle of equality serving as the foundation of the review. Intergenerational justice, which concerns the relationship between the current and future generations, frequently assumes rightsholders and harms that have not yet been realized. This presents a number of practical difficulties. This paper posits that the possibility of an equality-based review can be partially secured if certain conditions can be imposed that could resolve those difficulties to establish a comparison group and confirm the existence of discriminatory treatment With regard to the standard for equality-based review, it seems that the Constitutional Court's position recognizes a limited scope of strict scrutiny and that this needs to be supplemented. While the Constitutional Court explains that legislative discretion is constrained and subject to strict scrutiny in instances where discriminatory treatment significantly restricts relevant fundamental rights, I contend that there is no rationale for limiting the harm caused by discriminatory treatment to “relevant fundamental rights.” Instead, I argue that legislative discretion also should be constrained and subject to strict scrutiny when the ideal of equality in modern constitutionalism, namely equality among members, is undermined, Based on this, the current climate policies, including the Framework Act On Low Carbon, Green Growth, should be subject to strict scrutiny for equality violations, and even if a relaxed standard of review is applied, shifting a heavier share of the carbon reduction burden to future generations could not be consistent with equality.