헌법과제로서 환경의 지속가능성에 대한 소고 ― 규범과 사회현실의 상호관련성 관점에서 ―

This thesis seeks to examine ‘environmental sustainability’ as a constitutional imperative. Environmental sustainability means ‘meeting the needs of the present generation without compromising the ability of future generations to meet their own needs.’ This implies that the current generation should restrain the economic development and other pursuits to prevent excessive environmental degradation. In this sense, environmental sustainability relates to intergenerational justice. Environmental sustainability is not only a prerequisite of the Constitution but also a constitutional imperative in terms of the challenge to the nation's perpetuity. However, our Constitution lacks provisions addressing environmental sustainability. While it defines the environment as a subjective right and includes the duty of the state and citizens to strive for environmental conservation, the latter is difficult to view as binding. This situation leaves the Constitution insufficient to adequately address the challenges of environmental sustainability. In Western countries like Germany, as economic development in the 1960s led to severe environmental destruction, politicians began advocating for environmental protection, and civil society also came to regard environmental protection as an important social value, leading to progress toward becoming an environmental nation. This process seemed almost as a natural reaction. However, in our society, environmental protection or environmental sustainability has not gained significant social or political consensus, and consequently, progress in this sector has been slow. This sluggishness in socio-political discourse stems from the failure of environmental consciousness to take root as a public good (Gemeinwohl) transcending individual interests, coupled with weak political culture and civil society traditions regarding the public good. In other words, the prerequisites for the Constitution to function as a Constitution differ from those of countries like Germany. This paper aims to examine not only constitutional provisions but also these constitutional premises, comparing them between Korea and Germany to derive implications that may contribute to future research in this field. The perspective of viewing the interrelationship between reality and norms will be applied. Therefore, this paper first examines Germany's social reality, focusing on how environmental awareness took root in German society, particularly through the role of the political sphere. It describes how environmental sustainability actually functions within society. In comparison, it describes how environmental sustainability has yet to take root in our society and writes about the disappointing role of the political sphere. Subsequently, theoretical discussions within German constitutional scholarship regarding the development toward an environmental state, the process of incorporating Article 20a into the Basic Law and the role and debates within the political sphere, and the significance of the German constitutional court climate ruling case of 2021 will be described. Then comes exploration of the constitutional incorporation of environmental rights in Korea, related discussions on environmental rights, and the significance of the Korean constitutional court climate ruling case of 2024. In conclusion, it seems that our Constitution lacks provisions specifically dedicated to environmental sustainability or protecting the environment for the life of future generations. The current provision centered on the environmental subject right is insufficient in this regard. While constitutional amendment is desirable, it is more important to first establish environmental sustainability as a constitutional value representing the public good. This requires developing theoretical frameworks for interpreting it as an inherent limitation or restriction on fundamental rights, and recognizing the binding force of the state's duty to conserve the environment. Rather than broadly recognizing the legislature's discretion in environmental matters, research is needed to establish, through substantive review by the Constitutional Court, criteria that set limits on discretion when necessary.