대의제민주주의에서 소수자 보호의 헌법적 의의와 구조

Abstract

Democracy operates by the majority rule. The majority rule, however, may not

and should not be justified as such when it fails to protect rights of the

minorities equally to those protected for the majority. A member of the

community does not lose her or his dignity as a human being or shed the status

as the holder of the constitutionally guaranteed rights just because she or he

does not belong to a majority under a peculiar standard at a particular moment.

It is a necessary and sufficient condition for the sustenance of any democracy

that the government is obligated to guarantee the rights for all individuals

including minorities. As discrimination against minorities lies at the core of the

issues pertaining to the constitutional protection of minorities and their rights, how

to construct the constitutional mechanism to interpret and apply the Constitutions

equal protection mandate in the context of constitutional adjudication over the

statute promulgated by the national legislature becomes an essential question to

be posed and answered. This challenge is deduced in a representative democracy

to the questions of how much of legislative formative power is constitutionally

vested to the national legislature and how much the Constitutional Court should

defer thereto in reviewing the constitutionality of the legislation, in terms of

democratic legitimacy of its function of constitutionality review over the statute.

Any particular standard of review to be adopted by the Constitutional Court for

equal constitutional protection of minority rights should be coherent and consistent

to the fulcrum in this larger context.