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정치학박사학위논문 대의정치와헌법재판 헌법소송의정치적동기유형화 년 월 서울대학교대학원 정치외교학부정치학전공 김현진
대의정치와헌법재판 헌법소송의정치적동기유형화 지도교수박찬욱 이논문을정치학박사학위논문으로제출함 년 월 서울대학교대학원 정치외교학부정치학전공 김현진 김현진의박사학위논문을인준함 년 월
18000 16000 14000 12000 10000 8000 6000 4000 2000 0 제 13 대제 14 대제 15 대제 16 대제 17 대제 18 대제 19 대 의원안 정부안
4500 4000 3500 3000 2500 2000 1500 1000 500 0 제 13 대제 14 대제 15 대제 16 대제 17 대제 18 대제 19 대 원안 수정 대안반영
700 600 500 400 300 200 원안 수정 대안반영 100 0 제 13 대제 14 대제 15 대제 16 대제 17 대제 18 대제 19 대
14 12 10 8 6 4 2 0 198819891990199119921993199419951996199719981999200020012002200320042005200620072008200920102011201220132014201520162017
80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00% 2009.2.23 2009.6.2 2009.6.20 반대 69.20% 67% 58.90% 찬성 25.90% 24.20% 18%
80 70 60 50 40 30 20 10 0 04.03.05 04.03.09 04.03.09 04.03.12
90 80 70 60 50 40 30 20 10 0 16.10.15 16.11.02 16.11.09 16.11.16 16.12.05 16.12.08 17.02.28
Abstract Representative Politics and Constitutional Adjudication - Categorization of Political Motivation for Constitutional Lawsuit - Hyunjin Kim Department of Political Science & International Relations Political Science Major The Graduate School Seoul National University The purpose of this paper is to examine the point that the cause of plaintiffs bringing lawsuits on political dispute to constitutional courts in constitutional lawsuits that can be classified as judicialization of politics can t be conclusively attributed to their political inability. For this purpose, this paper categorizes political motivations for constitutional lawsuits and analyzes judgments of constitutional courts based on analytical framework and concepts of political science such as responsiveness, legitimacy and accountability that make up the core concepts of representative politics.
The concepts of judicial restraint and judicial activism have not been clearly defined in academic. Political interpretation of the judgments of constitutional courts can be made by analyzing both the content of rulings and political context in which the constitutional lawsuits were filed. Judicial restraint in this paper is defined as the case for judgment results intentionally staying out of the political process and the case for judgment results actively reflecting public opinion. However, it is not interpreted as constitutional court being dragged or misled by public opinion. This paper interprets that constitutional court utilizes public opinion in making judgment on constitutional lawsuit to secure justification for judgment. This paper categorizes political motivations for constitutional lawsuit into five categories. Constitutional lawsuit can be filed for political motivations such as flaw in internal process of national assembly, establishment of justification for principle of majority rule, mismatch between principle of majority rule and public opinion, turnaround of political environment, promotion of legitimacy of administration and dispersion of political responsibility. In case constitutional lawsuits are filed due to cutoff of a route to present an issue arising from the absence of a negotiating process within national assembly, political motivations are similar, but different interpretations are made for responsiveness and accountability. Act on Anti Graft is an expanded case of responsiveness. Act on Improvement of National Assembly minimizes accountability, while Act on Public Election can be interpreted as a judgment for expanding accountability. While issues about the majority rule in National Assembly becomes the major object of judicial review in jurisdictional dispute
between congressmen and the Chairman of the National Assembly, constitutional court only partly confirms violation of the constitution in the process and can be viewed as judicial restraint to the extent that it abdicates from judging the effect of the law and does not get involved in the political process. In case the principle of majority rule and public opinion differ, it can be known that constitutional court maximizes responsiveness to public opinion and strengthens accountability by announcing the majority rule from National Assembly in violation of the constitution in the case of Act on Relocation of New Administrative Capital that was filed as constitutional lawsuit to salvage violation of individual rights. When evaluating the case for dissolution of the Unified Progressive Party that was filed for turnaround of political environment and promotion of the legitimacy of administration and the two cases of impeachment that were filed for dispersion of accountability, it was confirmed that constitutional court acts as a strategic player by lowering the burden of responsibility through judgment in line with judicial restraint for alignment with the will of the government and direction of public opinion and maximizing the institutional legitimacy. By examining the cases of constitutional lawsuits filed according to the five categories of political motivations, it was found that constitutional court tries to maximize the institutional legitimacy through judgments of judicial restraint. However, interpretation of responsiveness and accountability differs for each case. In constitutional lawsuits involving issues of inequity in the principle of majority rule, responsiveness is interpreted passively. And the judgment for the case is in the form of judicial restraint that does
not interfere with the area of plaintiff s legislation discretion or autonomy. However, in constitutional lawsuits regarding the absence of negotiating process in National Assembly and conflict between the principle of majority rule and public opinion and constitutional lawsuits filed for political purposes such as turnaround of political environment and dispersion of political responsibility, constitutional court makes judgements in line with active realization of responsiveness. In sum, in the case of constitutional lawsuits that can be classified as resulting from political motivations as opposed to the inability of the plaintiff, constitutional court makes judgments of judicial restraint by not interacting judicial settlement with political process and being in line with the direction of public opinion. It is shown that constitutional court maximizes institutional legitimacy and strategically minimizes or maximizes responsiveness and accountability depending on political issues when evaluating cases regarding legislation. Keywords : categorization of political motivation, representative politics, Constitutional Court of Korea, public opinion and responsiveness, institutional legitimacy, judicial restraint Student Number : 2004-30058