뉴질랜드의 입법에 대한 사법심사

New Zealand operates under an unwritten constitution and adheres to the principle of parliamentary sovereignty. In the absence of a supreme, higher law, judicial review of legislation has traditionally not been permitted. However, the New Zealand Parliament enacted the Bill of Rights Act (“NZBORA”) in 1990 in response to concerns over the concentration of power in a unicameral legislature, inadequate checks on a strong executive, and insufficient implementation of international human rights norms. NZBORA introduced a novel form of judicial review compatible with parliamentary sovereignty: although courts cannot invalidate legislation enacted by a Parliament with democratic legitimacy, they are placed under an interpretive mandate to adopt rights-consistent interpretations of statutes where reasonably possible. The Act constitutes a new model of judicial review that does not empower the judiciary to strike down legislation. Under this framework, courts are obligated to interpret legislation in a manner consistent with the rights protected under the Bill of Rights Act; where the plain meaning of a statute clearly limits such rights, the courts must nonetheless give effect to the statute. This stands in contrast to judicial systems such as those of the Republic of Korea, the United States, or Germany, where either a centralized constitutional court or ordinary courts conduct constitutional review and possess the power to invalidate unconstitutional legislation. In New Zealand, the final word on whether laws infringe human rights remains with Parliament, the democratically elected branch, rather than with the judiciary. Scholars have thus characterized the New Zealand model as a form of “weak-form judicial review.” New Zealand courts have applied the Act across a range of cases, including those involving criminal procedure and freedom of expression, while simultaneously developing a body of jurisprudence on rights-consistent interpretation. In 2018, the New Zealand Supreme Court recognized the declarations of inconsistency as a form of declaratory remedy, empowering the judiciary to formally declare that legislation is incompatible with NZBORA rights. The Act thus holds particular significance as an institutional design choice aimed at protecting core civil liberties through the judiciary while upholding democratic legislative authority. New Zealand’s distinctive model has received limited attention in Korea despite its relevance to constitutional practice. Yet it offers valuable insights for the Korean legal system, in which ordinary courts also engage in constitution-conforming statutory interpretation. Examining the New Zealand approach may provide a useful comparative perspective on the distribution and coordination of power between the legislative and judicial branches.