기후위기 대응에서 입법형성의무의 범위- 우리나라 기후소송 결정의 분석과 비교법적 검토 -

This article reconceptualizes climate change governance not as a mere matter of environmental policy choice or the appropriateness of administrative planning, but as a question of constitutional order centered on the protection of fundamental rights and the State’s duties of protection. Focusing on the Constitutional Court of Korea’s decision of August 29, 2024—which held unconstitutional-incompatible the absence of long-term greenhouse-gas reduction targets for 2031–2049 under the Framework Act on Carbon Neutrality and Green Growth and ordered time-bound legislative amendment—this study examines how a “gap” in statutory targets can translate into a deficit in rights protection, and how such a deficit may be controlled through standards of constitutional review and remedial design. It further draws on comparative reference points, including the German Federal Constitutional Court’s decision of March 24, 2021 and the Dutch Supreme Court’s judgment in Urgenda (December 20, 2019), to identify the content of constitutional commands emerging from climate litigation and to typologize remedial models. The analysis yields four main conclusions. First, the constitutional environmental right (Article 35 of the Constitution) and the general doctrine of duties to protect entail a State duty to establish a mitigation pathway—often framed in terms of a carbon budget—through to the point of carbon neutrality. This duty requires more than fragmented annual targets; it demands the normative specification of the entire long-term period without leaving temporal “blank zones.” Moreover, the pathway-setting duty is structural: it encompasses not only the existence of targets, but also procedural safeguards necessary to make rights protection effective, including disclosure of methodological bases, cycles for updating, monitoring and evaluation procedures, and clear allocation of responsibility. Second, intergenerational equity may be translated from an ethical aspiration into the language of rights-based remedies by arguing that postponing mitigation shifts burdens forward and pre-emptively constrains future freedom. This translation can be doctrinally grounded in Korea by mediating between the German Court’s “intertemporal guarantee of freedom” reasoning and the Korean Court’s finding of a long-term target gap. Third, constitutional review in climate cases should be structured around the combined use of the prohibition of insufficient protection and the principle of statutory reservation: while respecting broad policy discretion, it must apply heightened scrutiny where institutional safeguards are missing, such as when long-term pathway regulation is left normatively vacant. Fourth, remedies in climate litigation need not be limited to outcome-directed orders; constitutional commands may be institutionalized through structural remedies, including declarations of constitutional incompatibility and time-bound legislative mandates. Accordingly, post-litigation legislative and institutional design should implement constitutional commands by codifying long-term targets, institutionalizing periodic updating, verification, and disclosure of pathways, and ensuring enforceable accountability and effective ex post controls when targets are not met.