법치주의와 입법형성권의 한계

This paper examines the constitutional limits of legislative discretion within the framework of the substantive rule of law. While the principle of the rule of law has traditionally been associated with formal legality, contemporary constitutionalism demands that legislation also conform to the substantive values and principles enshrined in the Constitution. This development imposes normative constraints on the legislature, suggesting that legislative discretion is not unfettered but bound by constitutional duties. The realization of substantive rule of law requires legislators to engage in diligent fact-finding, comply with democratic procedures, and reflect the presumed general will of the people. In the South Korean context, the recent proliferation of member-initiated bills, coupled with concerns about legislative quality, highlights the pressing need to reconcile the tension between legislative autonomy and constitutional accountability. To address these challenges, this paper argues for a dual approach: in addition to ex post constitutional review by the Constitutional Court, ex ante institutional reforms must be implemented. These include enhancing the democratic legitimacy and procedural fairness of the legislative process, strengthening legislative impact assessment mechanisms, and institutionalizing constitutional scrutiny during legislative deliberation. Ultimately, the principle of the rule of law serves as a constitutional safeguard that defines the permissible scope of legislative power, protects fundamental rights, and prevents arbitrary governance. Clarifying the limits of legislative discretion from the perspective of the rule of law is essential for realizing the constitutional order, especially amid today’s growing political polarization and the resulting crisis of representative democracy.