기후위기 헌법재판소 결정과 미래세대 - 2020헌마389등 결정의 성과, 한계, 실천적 의미

In August, the Constitutional Court declared Article 8(1) of the Framework Act on Carbon Neutrality and Green Growth For Coping with Climate Crisis unconstitutional(hereinafter the “Climate Decision”). This article assesses the achievements and shortcomings of this decision and its practical implications for the future. In addition to the aforementioned declaration of unconstitutionality, the achievements of the Climate Decision include the establishment of a constitutional framework for the protection of future generations in the context of the climate crisis. Furthermore, it recognizes the vulnerability of future generations to the adverse effects of climate change and identifies solutions to address this vulnerability. Among the shortcomings of the Climate Decision is the arbitrary narrowing of the issues raised by the complainants as members of future generations. This undermines the legal force of their multiple claims. The framing of the discussion fails to recognize the distinction between the two independent approaches ― the proportionality test and the duty to protect test ― and undervalues the probability of success for the complainant's claims. Furthermore, the Climate Decision prompts the question of whether the methodology of evaluating the disproportionate burden on future generations has been consistently applied in the establishment and implementation of greenhouse gas reduction targets. The crucial question now is how to build upon these achievements and limitations and develop efforts and explorations for a ‘post climate decision’ climate crisis. This article concludes with a discussion of the practical implications of climate decisions that can contribute to the response to the climate crisis. It is imperative that the basic rights of future generations be central to the process of addressing climate change in the future. The constitutional guidelines identified in the Climate Decision can be usefully referenced here.