유럽 주요국의 헌법에 비춘 우리나라 헌법상 동물보호 규정의 개선 연구

In light of the constitutional provisions on animal protection found in the Swiss Constitution, the German Basic Law, the Belgian Constitution, the Luxembourg Constitution, and the Italian Constitution, it is desirable that future constitutional regulation of animal protection in Korea take the form of a constitutional amendment that introduces a separate provision, distinct from the environmental rights clause in Article 35 of the Korean Constitution. Such an amendment would be justified by four major constitutional reform needs, as discussed below. First, although it may be difficult for individuals to directly claim the protection of animals from the State on the basis of a constitutional animal protection provision, such a provision would impose both positive and negative legislative obligations on the legislature to prevent animal abuse and to promote animal welfare. In doing so, it would strengthen the State’s responsibility for animal protection and serve as a legislative benchmark for the exercise of administrative and judicial powers in matters concerning animal protection. Second, following the examples of the Belgian and Luxembourg Constitutions, it is necessary to explicitly recognize animals in the Constitution as sentient beings—that is, beings capable of perception or sensitivity—in order to elevate the constitutional status of the State’s responsibility for animal protection. Third, in line with the Swiss Constitution and the German Basic Law, the Constitution should expressly provide for concrete State obligations to protect animals in specific contexts such as animal experimentation, slaughter, and trade, thereby further reinforcing the State’s constitutional duty of animal protection. Fourth, consistent with the approaches adopted in the German Basic Law and the Constitutions of Belgium and Italy, animal protection should be defined as a constitutional responsibility of the State aimed at ensuring sustainable development for future generations, together with the protection of the natural foundations of life. Such a provision would expressly affirm that human beings are members of the broader ecosystem and would strengthen the protection of the interests of future generations by enhancing the value and protection of animals, thereby contributing to the sustainable preservation and development of future generations. Meanwhile, if a constitutional provision on animal protection is introduced into the Constitution of the Republic of Korea in the future, it should be clearly understood that such a provision would not create a direct conflict or friction with human fundamental rights related to animal protection, such as property rights or the right to education. Rather, it would function as a constitutional mandate on animal protection, guiding the manner in which these human fundamental rights are exercised by placing greater weight on the protection of animals and encouraging the legislature to enact and develop animal protection–related legislation accordingly. Furthermore, in light of the fact that the Supreme Court of Korea has not clearly recognized animals themselves as possessing procedural capacity to be parties to litigation, and that neither the German Federal Constitutional Court nor the German Federal Court of Justice—despite the long-standing explicit inclusion of animal protection provisions in the German Basic Law and the existence of numerous animal protection statutes enacted thereunder—has to date recognized animals themselves as having procedural standing as parties to legal proceedings, it is reasonable to conclude that animals do not possess litigation capacity in their own right. In other words, animal protection under the Constitution should be understood as belonging to the sphere of the State’s duty of protection or as a constitutional value decision. As such, it functions as a constitutional mandate for animal protection that grants the legislature broad discretion in shaping animal protection legislation, rather than conferring procedural party capacity or directly enforceable rights upon animals themselves.