합헌적 법률을 위한 ‘근거중심입법’의 필요성

The concept of evidence-based medicine, which refers to the conscientious, explicit, and judicious use of current best evidence in making decisions about the care of individual patients, can be applied to the legislative process. In order for a statute to be constitutional, legislative facts should be supported by sufficient empirical evidence. In terms of the legitimacy of the legislative process, evidence is indispensable to secure expertise and ensure democratic legitimacy. In terms of the constitutionality of the legislation, evidence is important in order to comply with the principle of proportionality through rational assessment of empirical facts, and to adhere to the principles of statutory reservation and parliamentary reservation by refraining from unnecessarily delegating essential details to administrative rulemaking. Accordingly, legislators are expected to collect sufficient empirical evidence. By analogy to evidence-based medicine, the process by which legislators fulfill this expectation—namely, making legislative decisions based on the judicious use of the current best evidence regarding legislative facts—may be referred to as “evidence-based legislation.” While current legal frameworks provide mechanisms for evidence-based legislation, such as committee systems, expert review reports, regulatory impact assessments, and legislative impact assessments, each of these mechanisms has its limitations. It is necessary for legislators themselves to recognize the importance of evidence-based legislation and to make efforts to realize it.