헌법재판소의 의회유보원칙 심사척도와 심사강도 ― 텔레비전 수신료, 온실가스 감축 목표, 그리고 AI 디지털교과서 ―

The non delegation doctrine is an important constitutional principle from the perspective of the separation of powers and the realization of fundamental rights. However, cases where the Constitutional Court recognizes a violation of this doctrine are rare. In 2024, the Constitutional Court acknowledged a violation of the non delegation doctrine while assessing whether the inadequacy of the national greenhouse gas reduction target infringed upon environmental rights. This decision marks a significant advancement not only in concluding a violation of the doctrine but also in presenting legal reasoning that could strengthen the intensity of the non delegation doctrine. The standard for reviewing the non delegation doctrine can be analyzed through two criteria: the requirement for fundamental rights realization and the essential matters requirement. The former pertains to whether a measure restricts, protects, or fulfills fundamental rights, while the latter evaluates the significance of the relevant values and interests, as well as the extent and manner of regulation or infringement. Regarding the intensity of judicial review, which determines how strictly the non delegation doctrine is applied, the Constitutional Court has set three criteria: the importance of fundamental rights, the necessity of public debate, and the need to balance conflicting interests. This approach is persuasive in that the issue of review intensity concerns the extent to which the Constitutional Court respects the discretion of the National Assembly or the executive branch from the perspective of the separation of powers. However, it is flawed in that it does not allow for the consideration of additional factors beyond these three. In the field of education, the non delegation doctrine manifests through Article 31(6) of the Constitution of Korea, which establishes the non delegation doctrine of the education. From a review standard perspective, this doctrine is composed of two elements: the requirement concerning the education system, education finance, and teacher status, and the essential matters requirement. If an issue relates to the education system, education finance, or teacher status, it satisfies the first requirement. If, further, the relevant values or interests are significant, and the degree and manner of regulation or infringement make it a fundamental matter, then the National Assembly must make decisions in the form of statute. If the National Assembly delegates decision-making on such fundamental matters to the executive branch without making the decision itself, the relevant statute is unconstitutional for violating the non delegation doctrine. Furthermore, if the executive branch enacts administrative legislation or issues administrative measures concerning fundamental matters of the education system, education finance, or teacher status without prior legislation by the National Assembly, such measures are unconstitutional as they violate the legality principle by infringing upon the exclusive national decision-making authority granted to the legislature under Article 31(6) of the Constitution.