독일과 한국 헌법재판소의 기후결정에 관한 고찰

In March 2021, the German Federal Constitutional Court ruled on a constitutional appeal against a provision of the German Federal Climate Protection Act. In its climate decision, the German Federal Constitutional Court introduced the concepts of “intergenerational guarantee of fundamental rights” and “quasi-ex ante effect” of limitations on fundamental rights in relation to Article 20a of the German Fundamental Law. Climate protection is part of the ‘natural foundations of life’ section of Article 20a of the German Fundamental Law. According to Article 20a of the German Fundamental Law, the state has a special and legally binding responsibility towards future generations with regard to environmental protection. Under Article 20a of the German Fundamental Law and the Federal Climate Protection Act, the German Federal Constitutional Court ruled that the legislature “is obliged to implement the necessary reductions in CO2 emissions to achieve climate neutrality, which must be shared in advance by future generations in order to safeguard their fundamental rights.” The German Federal Constitutional Court, on the one hand, said that this was a violation of the state's duty to protect the fundamental rights to life, health and property. On the other hand, it was judged to be an “unconstitutional threat to fundamental rights comprehensively protected by the plaintiff’s fundamental rights.” The German Federal Constitutional Court used an ‘obviousness control’ criterion in climate decisions, examining whether state institutions (in particular the legislature) have not legislated at all or whether the protective measures taken are clearly inadequate. In cases involving legal interests such as life, health, and climate change decisions, the standard of ‘Reasonableness control’ should be used to examine the case based on a thorough investigation of the facts and the principle of prohibition of underprotection. In August 2024, the Constitutional Court of Korea ruled that “Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth to Respond to the Climate Crisis is unconstitutional.” When the Constitutional Court, like others, specifically defines a restriction on the “right to the environment” in relation to a restriction on fundamental rights, it examines whether the provision under review violates the “principle of proportionality.” However, the Constitutional Court’s decision to determine whether this is a violation of the “principle of prohibition of underprotection” related to the state’s performance of its “duty to protect fundamental rights” by specifying it as a restriction on the “environmental rights” is not appropriate in terms of the legal logic of constitutional adjudication. In addition, it is a matter of finding the legal interests of victims of fundamental rights that the state must protect in relation to its duty to protect fundamental rights. Since the environmental right is a social fundamental right, it is not a fundamental legal interest subject to a duty to protect fundamental rights. The fundamental legal interest related to the state’s duty to protect fundamental rights is not the right to the environment, but the threat to ‘life’ and ‘health’ from the danger of the climate crisis.