SHERP

대의제민주주의에서 소수자 보호의 헌법적 의의와 구조
Protection of the Minority under the Constitution of Representative Democracy

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Authors
이우영
Issue Date
2007
Publisher
서울대학교 법학연구소
Citation
법학, Vol.48 No3 pp.162-196
Keywords
대의제민주주의위헌법률심판의 민주적 정당성의정과정, 평등권소수자 보호representative democracydemocratic Legitimacy of the constitutionality review over the statuteLegislative processprotection of minorityright to equality
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 Constitution’s
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.
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/10168
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 48, Number 1/4 (2007)
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