인터넷 상의 청소년보호에 관한 한국과 미국의 법제 비교 고찰

박훤일 경희대학교 법학연구소 2008 경희법학 Vol.43 No.1

The Internet has become an inseparable part of the life of today's youth. Users can access the Internet regardless of their age. More often than not, minors are exposed to sexually explicit or violent materials through text, images, online games, etc. Recently, youngsters imitating such content on the Internet have raised serious social issues in Korea. To protect minors from accidental exposure to sexually explicit materials on the Internet, it is the best policy to block content harmful to minors. In the United States, Congress established the Communications Decency Act (CDA) in Title V of the Telecommunications Act of 1996. Two provisions of the CDA were challenged by civic groups, however, because the CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech. Although the government has a compelling interest in protecting children from potentially harmful materials, the CDA set out to pursue that interest by suppressing constitutionally protected adult speech. In place of the CDA, Congress enacted the Child Online Protection Act (COPA), of which enforcement was halted because it failed to satisfy a strict scrutiny test under the First Amendment. A series of U.S. Supreme Court decisions held that the compelling government interest of protecting youth could be inferior to the fundamental right of free speech. In Korea, obscene and violent content on the Internet is strictly regulated by the government. In principle, the Penal Code applies to the dissemination of obscene content via the Internet. For example, the recently established “Act concerning the Punishment of Sexual Violence Crime and the Protection of Its Victim” provides that anyone, who conveys via the communications networks texts, images or other items that arouse disgrace or disgust for the purpose of stimulation or satisfaction of sexual desire, shall be subject to imprisonment of less than one year or a fine up to three million won (equivalent to U$3000). Next, the “Youth Protection Act”, which defines a minor as a person under 19 years old including all high school students, prohibits any material harmful to youth from reaching minors without appropriate limitations such as age verification. If the violator uses the broadband networks, the “Act on the Promotion of Information and Communications Network Utilization and Data Protection” applies. This Act allows information service providers to take responsibility for the watchful management of their web sites. If the protection of youth cannot be fully attained by law, it is advisable to pursue a technological solution which requires less cost and effort. For youngsters, it is up to their parents as well as schools, communities and the state to lead them in the right direction regarding the proper use of the Internet. With the U.S. Supreme Court's decision on the constitutionality of the Children's Internet Protection Act (CIPA), filtering technologies turned out to be a plausible, least restrictive means of the protection of minors on the Internet. But we should pay keen attention to the increasing power of new technologies. To tackle this complicated policy issue - how to protect minors in the cyberspace, we may follow the three-step algorithm suggested by Professor Jerry Kang at the UCLA School of Law. First, identify options that might solve the problem - legislative advancement, technological solution or socio-cultural education of the Internet users. Second, assess the efficacy of these options through cost and benefit analysis. Generally speaking, the socio-cultural enlightenment seems superior in view of expected benefits to technological solutions or advanced legislation, while its order could be reversed in terms of cost. The policy-makers used to prefer the legislative measures to other alternatives on account of the cost and time saving merit. Third, it is wise to make some constitutional or legal value judgment on the basi... The Internet has become an inseparable part of the life of today's youth. Users can access the Internet regardless of their age. More often than not, minors are exposed to sexually explicit or violent materials through text, images, online games, etc. Recently, youngsters imitating such content on the Internet have raised serious social issues in Korea. To protect minors from accidental exposure to sexually explicit materials on the Internet, it is the best policy to block content harmful to minors. In the United States, Congress established the Communications Decency Act (CDA) in Title V of the Telecommunications Act of 1996. Two provisions of the CDA were challenged by civic groups, however, because the CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech. Although the government has a compelling interest in protecting children from potentially harmful materials, the CDA set out to pursue that interest by suppressing constitutionally protected adult speech. In place of the CDA, Congress enacted the Child Online Protection Act (COPA), of which enforcement was halted because it failed to satisfy a strict scrutiny test under the First Amendment. A series of U.S. Supreme Court decisions held that the compelling government interest of protecting youth could be inferior to the fundamental right of free speech. In Korea, obscene and violent content on the Internet is strictly regulated by the government. In principle, the Penal Code applies to the dissemination of obscene content via the Internet. For example, the recently established “Act concerning the Punishment of Sexual Violence Crime and the Protection of Its Victim” provides that anyone, who conveys via the communications networks texts, images or other items that arouse disgrace or disgust for the purpose of stimulation or satisfaction of sexual desire, shall be subject to imprisonment of less than one year or a fine up to three million won (equivalent to U$3000). Next, the “Youth Protection Act”, which defines a minor as a person under 19 years old including all high school students, prohibits any material harmful to youth from reaching minors without appropriate limitations such as age verification. If the violator uses the broadband networks, the “Act on the Promotion of Information and Communications Network Utilization and Data Protection” applies. This Act allows information service providers to take responsibility for the watchful management of their web sites. If the protection of youth cannot be fully attained by law, it is advisable to pursue a technological solution which requires less cost and effort. For youngsters, it is up to their parents as well as schools, communities and the state to lead them in the right direction regarding the proper use of the Internet. With the U.S. Supreme Court's decision on the constitutionality of the Children's Internet Protection Act (CIPA), filtering technologies turned out to be a plausible, least restrictive means of the protection of minors on the Internet. But we should pay keen attention to the increasing power of new technologies. To tackle this complicated policy issue - how to protect minors in the cyberspace, we may follow the three-step algorithm suggested by Professor Jerry Kang at the UCLA School of Law. First, identify options that might solve the problem - legislative advancement, technological solution or socio-cultural education of the Internet users. Second, assess the efficacy of these options through cost and benefit analysis. Generally speaking, the socio-cultural enlightenment seems superior in view of expected benefits to technological solutions or advanced legislation, while its order could be reversed in terms of cost. The policy-makers used to prefer the legislative measures to other alternatives on account of the cost and time saving merit. Third, it is wise to make some constitutional or legal value judgment on the basis of factu...

상속에 있어서 미성년자 보호

송효진(Hyo Jean, Song) 한국가족법학회 2010 가족법연구 Vol.24 No.3

The issue of protecting minor heirs in inheritance is an important part of child protection because the result of such legal actions may change their lives forever. Improvement measures based on root-cause analysis as well as thoroughly-prepared legal system are necessary to prevent young victims of insufficient legal protection in inheritance. The civil law of Republic of Korea protects the minors through persons with parental authority or guardianship based on the legal guardian system. However, regulations on acting against the interest of the minor and on abuse of rights created to limit legal parental authority cannot provide sufficient control. A more proactive measure to protect the minors in parental custody must take place. Meanwhile although an amendment was adopted for the guardianship system, it is still insufficient to protect the minors as the amendment focuses on implementing guardianship for the legal aged. All in all, control over parental custody or guardianship, such as custody control by the Family Court or instituting supervision over guardians, must be strengthened for minor protection. This, however, cannot be the fundamental solution. Too much supervision or control over custodians or guardians may cause inconveniences or burden in acting out their duties, and no matter how much the Family Court strengthens its function, there still will be limitations in getting involved in actual situations. Likewise, legal supervision over the person with parental authority is weak and is unable to suffice as a preventive measure for minor protection. Given such a situation, remedy can only remain secondary in terms of priority and the legal capacity to consider the hardship and suffering of the minor until he/she is remedied is obsolete. Even if remedy may be possible later on, unlike other legal actions, the problems related to inheritance cause irrepairable damages to minors’ lives in terms of impact on their childhood and ensuing consequences in life. Especially, under the inheritance system of Korea which is based on simple acceptance system, the danger a minor may fall into in case he/she cannot be protected by the legal guardian system is significant. Therefore, as a fundamental measure, an exception provision for minors should be legislated in the simple acceptance system since the system may yield results too harsh for minors to bear. It is recommended that after expiration of the decision-making time period, the law should favor limited acceptance for the minor heirs. And improvement should be made so that a supervisory organization oversees the acceptance or refusal of succession to assure no disadvantage is caused to the minor by the custodian or the guardian and that such an acceptance or refusal of succession is made in a clear statement.

국제법상 소수자보호의 변화 -유럽 소수자보호 골격조약을 중심으로-

박정원 ( Jung Won Park ) 단국대학교 법학연구소 2013 법학논총 Vol.37 No.4

Efforts to promote minority protection under international law have seen both change and continuity. The protection and guarantee of cultural identity for persons belonging to minority groups (as opposed to majorities) with full equality in their state of residence constituted the essential principle for classical minority protection under the League of Nations. This principle is still valid today. However, since the end of the Cold War the meaning of ‘minority protection’ has changed, going beyond the classical concept of minority protection. Respect for cultural diversity and intercultural dialogue in societies is more emphasized in terms of real and effective minority protection. This article analyses such changing aspects of minority protection under contemporary international law through the examination of the Framework Convention for the Protection of National Minorities (FCNM), which is the first-ever multilateral convention for the protection of national minorities. The classical concept of minority protection is no longer valid in this age of increasing global cooperative governance and international migration. Nevertheless, the argument that it is no longer necessary to distinguish between minority and majority within a state, given that the concept of the nation-state has been challenged qualitatively, is also unconvincing. What is more plausible is that the concept of the nation-state is being questioned due to its own complexities and contradictions. In this regard, the developmental practice with respect to minority protection within the framework of the FCNM is very suggestive. In particular, it is noteworthy that the Advisory Committee of the FCNM has largely contributed to the formulation of legal standards for the protection of minorities through its consistent recommendations. This is the very reason why specialists in the field of international minority protection should pay careful and particular attention to the evolutionary practice of the Advisory Committee of the FCNM.

미성년자의 생명권과 국가의 보호의무

한지혜(Ji-Hae HAN) 성균관대학교 법학연구소 2012 성균관법학 Vol.24 No.1

This paper's topic is about minors' right to life. It mainly focuses on the conflict between the freedom of religion and the right to life in case when minors who are under parental rights lose their consciousness because of the illness. Especially I dealt with the problems can occur when parents with parental rights exercise their passed out underage children's right to life and freedom of religion. The fact is that we don't have much to do to the parents who violate their unconscious children's right to life in the name of religion. To make it clear in constitution, I made sure the minors situation as those possess both religious freedom and right to life. The government whose one of the duties is to protect its citizen's rights, must protect those minors with the fundamental human rights. Unfortunately, however, in Korea, because the provision for this is not so clear, I referred to cases in other countries. I mainly focused on the cases of United States because the hospital's ethic committee structure for the recent case of a minor's death on the religious reason resembles the one ones in America. In addition, I included recent comments on the special protection for the minors (or underaged) in the constitution. In my personal opinion, it is unnecessary to apply any other legal provisions to protect the minors with religious rights and right to life. I also researched on two Korean cases related to religious freedom.

법의 목적론적 해석과 소수자보호의 법리 전개 - 국제법의 관점에서 -

박정원 ( Park Jungwon ) 단국대학교 법학연구소 2016 법학논총 Vol.40 No.3

Although the international protection of ethnic, religious and linguistic minorities has long been discussed in the field of international law, relevant international legal standards are still quite vague and remain unsatisfactory in terms of precise, effective minority protection. The topic of minority protection itself with special emphasis on the full respect of ethnic, religious or linguistic differences for minority groups within nation states is a highly sensitive and politically controversial issue. For this reason, international legal documents for minority protection have tended to be vaguely worded at best, which has consistently raised the fundamental problem of how the appropriateness and effectiveness of minority protection under international law can be secured. With this in mind, this article pays particular attention to the importance of the teleological interpretation of minority protection under international law, as it has contributed greatly to the development of more elaborated legal standards of such protection. This may be seen through the critical assessment of jurisprudence of international tribunals and semi-judicial bodies with regard to the issues of minority protection. In particular, the jurisprudence of the Permanent Court of International Justice (PCIJ) during the League of Nations period had great normative impacts upon the subsequent development of minority protection under international law. The PCIJ employed the teleological method of treaty interpretation extensively in making sense of minorities treaties during the League of Nations period, and thus was able to establish fundamental criteria for the protection of ethnic, religious or linguistic minority groups. Such positive intervention by the PCIJ in minority protection cases through the active use of the teleological method of treaty interpretation was significant, because it eventually contributed to the establishment of normative foundations for subsequent development of international human rights law after the creation of the United Nations in 1945. The practices of the PCIJ, with their focus on teleological interpretation, seem to have been followed by the jurisprudence of judicial and semi-judicial bodies with regard to cases or issues of minority protection in contemporary international law. The work conducted by the Committee on the Elimination of Racial Discrimination and the FCNM Advisory Committee may be considered examples of such jurisprudence. This article also points out that judicial efforts for the elaboration of legal standards for the protection of minority rights, in the sense of effective protection in accordance with the teleological approach of law, have been challenged by the practice of the so-called concept of “margin of appreciation” in the European Court of Human Rights. Given the fact that persons belonging to ethnic, religious or linguistic minorities tend to be easily exposed to many kinds of vulnerable situations, whether political, social or economic, the practice of employing the “margin of appreciation” concept in resolving cases or issues related to minority rights would seem problematic and inappropriate for the purposes of securing ‘effective minority protection.`

The OSCE High Commissioner on National Minorities and the Protection of Minority Rights in Europe

Jungwon Park 대한국제법학회 2009 國際法學會論叢 Vol.54 No.3

유럽안보협력기구의 소수자문제 고등판무관 제도는 1990년대 이래 유럽에서의 소수자권리 보호에 있어 독특한 역할을 해왔다. 고등판무관제도는 소수자라는 용어를 사용하고 있지만 소수자권리 보호 그 자체 보다는 인종분규로 인한 OSCE 회원국 내의 혹은 회원국간의 안보 위험을 방지하자는 목표에서 출범하였다. 그러나 이러한 지역적 안보 위험 방지의 목표와는 별도로 고등판무관은 소수자권리 보호를 위한 법적 기준 확립 및 발전에도 기여해왔다. 본고는 고등판무관 제도를 소수자권리 보호의 차원에서 살펴보았다. 현대국제법의 세계에서 소수자보호 문제는 법적기준의 확립과 국가적 의무이행 확보라는 차원에서 매우 불충분한 상태로 존재하고 있다. 무엇보다도 소수자권리의 확대가 국내 질서의 안정을 저해할 수 있다는 다수 국가의 소수자문제를 바라보는 소극적인 시각이 실효적인 소수자권리 보호를 어렵게 만들고 있다. 그렇다고 해서 소수자보호의 국제법이 완전한 정체상태에 빠져있다는 뜻은 아니다. 소수자권리 보호를 위한 국제법적 기준의 확립과 발전이 소수자 문제의 민감성으로 인해 매우 더딘 상태로 진행되고 있지만 그럼에도 불구하고 소수자보호의 국제법은 꾸준히 발전하고 있기 때문이다. 소수자문제 고등판무관이 소수자권리 보호를 위해 적극적으로 활용하는 수단은 이른바 권고제도이다. 권고제도는 고등판무관이 스스로의 관행을 통해 발전시킨 것으로서 소수자권리 보호를 위해 매우 효과적으로 사용되고 있다. 권고제도에는 두 가지 있는바 일반적 권고와 특정국가 권고가 그것이다. 일반적 권고는 소수자권리 보호에 대한 고등판무관의 기대와 요구가 반영된 것으로 기존의 국제법상의 소수자권리의 기준을 명확화하고 구체화시키는 기능을하고 있다. 특정국가 권고는 실제로 인종 분규가 심각한 양상을 띠고 있는 국가를 고등판무관이 방문하면서 관계 당국과의 계속적인 서신 교환의 방식으로 구체화된다. 이러한 권고제도의 적극적인 사용을 통해 고등판무관은 유럽에서의 소수자권리 보호 문제에 있어 기준의 설정자로서의 기능과 기준의 이행에 대한 감독자로서의 기능을 사실상 수행하면서 소수자권리의 공고화에 크게 기여하고 있다고 평가된다. 뿐만 아니라, 고등판무관은 특정국가 권고제도를 통해 소수자의 인적 범위를 탄력적으로 해석함으로써 소수자보호 국제법의 매우 민감한 문제인 이주노동자와 이민자 등 새로운 소수자에 대한 보호 가능성을 보여주고 있다. 애초에 고등판무관 제도의 탄생 목적이 소수자권리 보호 그 자체에 있지 않기 때문에 이 제도를 오로지 소수자보호를 위한 독립 기구로 파악하는 것은 곤란하며 따라서 이 제도의 한계를 인식하는 동시에 이 제도의 특징인 동적인 자생적 발전 가능성에 주목하여 효과적으로 운용하면서 소수자보호의 실질화에 적극적으로 활용하는 것이 매우 필요하다고 보여진다. The High Commissioner on National Minorities within the Organization for Security and Co-operation in Europe (OSCE) has played a unique role in the field of the protection of minority rights in Europe since the early 1990s. Even though the institution was not established for the protection of minority rights as such, it has functioned to protect minority rights by establishing its uniquely self-sustained practices. The central and most effective instrument for the High Commissioner in minority issues in the OSCE states is the recommendation procedure. There are two types of recommendations issued by the High Commissioner: general recommendations and country-specific recommendations. General recommendations are primarily concerned with the clarification and elaboration of existing minority rights standards in a way to present the High Commissioner's expectations and policy guidelines of minority rights for all participating states of the OSCE. The High Commissioner has also issued country-specific recommendations for the purpose of the resolution of ongoing serious conflicts regarding the treatment of minority groups in particular countries in the OSCE area. The country-specific recommendations are more carefully formulated and describe specific suggestions, which in his opinion might resolve the conflict in question. The High Commissioner has sought to induce a particular OSCE state faced with serious ethnic conflicts to comply with minority rights standards by issuing country-specific recommendations, which could have great impacts on the domestic minority policies of the state concerned. The High Commissioner has also functioned as an 'actual' monitor for the protection of minority rights, though there are no concrete provisions for such functional aspects under the Mandate. The monitoring functional aspects of the High Commissioner have become more real and effective with the normative coalition with other European organizations on human rights such as the Council of Europe whose institutional concerns also cover minority protection. Moreover, the High Commissioner seems to have contributed to providing the possibility for the protection of 'new minorities' by taking a flexible position on the question of the citizenship requirement for the minority definition under international law. The practice of the High Commissioner in the field of minority protection has shown that the High Commissioner has contributed to consolidating minority rights in Europe by playing double roles as standard-setter and monitor for the protection of minority rights. The point is that the very institutional nature of the High Commissioner in relation to minority protection is dynamic, instead of being static or neutral and these features must be considered and used more effectively in a constructive manner for the future mandates.

한국과 독일의 청소년 유해미디어 심의에 관한 연구

최종선 ( Jong Sun Choi ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.1

This paper reviews system of juvenile protection between Gremany and S. Korea. JMStV of Germany is the interstate treaty that it is for the consistent protection of children and adolescents against content in electronic information and communication media which impairs or harms their development or education, and for the protection against content in electronic information and communication media which vialate human dignity or other legal goods protected under the German Criminal Code. JMStV shall apply to electronic information and communication media(broadcast and telemedia services). In order to perform the tasks pursuant to protection of minors in the media, they established the commission for the protection of minors in the media(KJM). The KJM consists of 12 experts. Of these, 1. six members shall be delegated by the directors of the state media authorities following consensual appointment by the state media authorities, 2. four members shall be delegated by the supreme state youth authorities in charge of the protection of minors, 3. two members shall be delegated by the supreme federal authority in charge of the protection of minors. The KJM shall be in charge of the definitive assessment of content pursuant to JMStV and certified organisations of voluntary self-regulation pursuant to JMStV. In the case of S. Korea, we installed commission on youth protection in order to deliberate and resolve on the following matters “1. examination and determination of drugs, articles, and business establishments harmful to juveniles, 2. imposition of penalty surcharges under Article 54(1), 3. matters referred to the commission by the minister of genger equality and family for deliveration as matters deemed necessary to protec juveniles, 4. other matter specified by any other act as subject to deliberaion and resolution by the commission.” The commission on youth protection shall be comprised of not more than 11 member, including one chairperson, and one public officail in charge of juvenile affairs designated by the minister of gender equality and family, from among public officials who are members of the senior executive service, shall serve as an ex officio member. For making new youth protection system from drugs, articles, and business establishments harmful to juveniles, we have to unify operational processes of content examining authority about media product harmful to juveniles. Second, we have to split recommendation authority of commission members. Diversification of recommendation authority of commission members might be right to let the experts in each field to carry out an independent consideration is intended to work. Finally, we have to tighten up self-regulation requirement for observe the juvenile protection act.

사회적 소수자 보호에 관한 미국 연방대법원의 판례 연구

송현정 ( Song Hyun Jung ) 사법정책연구원 2019 연구보고서 Vol.2019 No.13

It is no easy matter to protect the rights of minorities because to eliminate discrimination equates to defeat the unduly generalized stereotype or prejudice which has been ingrained into commonsense of the age. Because of the anti-majoritarian characteristics, issues concerning the protection of minorities would most likely arouse controversy in social and political arenas, especially in a democratic society resting upon the principles of majority rule. Yet, the concept of liberal democracy does not merely mean compliance with majority rule. The majority rule without the protection of minority rights is nothing more than formal democracy and tyranny of the majority alike.  The protection of minorities, of course, had best be made by legislative and executive bodies with democratic legitimacy, but due to the nature of the principles of democracy which include the majority rule, governmental decisions are likely to be made by the will of the majority, and the opinion of minorities tends to be marginalized by and large in the decision-making process. In this regard, an independent judiciary, as a power not elected by the people, that is, not affected by the majority rule, needs to be the “last resort” to protect the minority against majoritarianism.  The United States Supreme Court has long been consolidated the primary duty of the judiciary to protect minorities by establishing judgments and legal principles aiming at social integration based on diversity. Under the Due Process Clause and Equal Protection Clause, the Court has struck down laws that discriminate based on race, alienage, national origin, illegitimacy, gender, sexual orientation, etc., holding the tone of judicial activism. The ex perience of the United States Supreme Court, which has taken the lead in minority rights protection, implicates the importance of the Korean judiciary’s role in realizing the social integration in a multicultural society, and in eliminating aversion and irrational discrimination against minorities. Therefore, as evidenced in the United States Supreme Court cases, this paper acquaints the people with the importance of the judiciary’s role in the protection of minorities and suggests that the Korean judiciary plays a key role to protect minorities through active interpretation of (constitutional) law, proactively influencing important governmental decision-making and social changes with respect to minority issues.

사법부의 소수자 보호 역할론 - 미국 연방대법원의 소수자 보호 법리 발전과정을 중심으로 -

송현정(Song, Hyun Jung) 미국헌법학회 2020 美國憲法硏究 Vol.31 No.3

소수자를 보호하는 일, 즉 소수자라는 개념이 수반하는 사회적 현상인 차별을 제거하는 일은 그 시대의 상식으로 자리 잡은 과도하게 일반화된 고정관념, 편견을 타파하여야하는 것으로 쉽지 않다. 또한 소수자 보호의 문제는 반(反)다수적 가치를 보호하는 성격을 가지기 때문에 다수결의 원칙을 채택한 민주주의 체제에서 사회적으로나 정치적으로 이목을 끄는 쟁점이 되곤 한다. 그러나 자유민주주의는 단순히 다수의 지배만을 의미하는 민주주의가 아니다. 자유민주주의 체제에서 소수자의 권익 보호가 결여된 다수의 지배는 형식적 민주주의에 불과하며, 또 다른 형태의 다수에 의한 독재와 다름없는 것이다. 물론 소수자 보호가 민주적 정당성을 확보한 입법부와 행정부에 의해 이루어지는 것이 마땅하지만, 민주주의의 속성상 국가의 의사결정은 다수자의 논리에 의해 이루어질 가능성이 크며 소수자의 의견이 결정에 의미 있는 영향력을 미치기란 쉽지 않다. 그러므로 선출되지 않은 권력으로서 독립성을 가진 사법부가 다수자에 의한 의사결정으로부터 소수자의 권리를 보호하기 위한 ‘최후의 보루(last resort)’가 될 필요가 있다. 미국 연방대법원은 오랫동안 사법적극주의의 기조를 견지하며, 다양성을 기반으로 한 사회통합을 지향하는 판결과 제반법리를 통해 소수자에 대한 차별을 시정하면서 소수자를 보호하는 임무는 사법부의 것임을 공고화하여 왔다. 소수자 보호를 주도하여 온 미국 연방대법원의 경험은, 최근 세계화와 이주화의 영향으로 다문화사회로 진입하는 과정에 있는 우리나라의 사회통합을 실현하고 우리 사회에 존재하는 혐오와 비합리적 차별을 철폐하는 데에 우리나라 사법부의 소수자 보호 책무와 관련하여 시사하는 바가 크다. 따라서 이 논문에서는 소수자 보호를 주도하여 온 미국 연방대법원의 역할에 주목하여 소수자 보호에 있어 사법부의 역할이 중대함을 알리고, 우리나라 사법부에 대해서도 앞으로 제기될 다양한 소수자 권리 침해 사건에서 우리 현실에 맞는 적극적인 (헌)법해석을 통해 국가의 중요한 의사결정과 시대의 변화에 전향적 영향을 미치면서 소수자 보호를 위한 역할과 기능을 수행할 것이 기대됨을 시사하고자 한다. It is no easy matter to protect the rights of minorities because to eliminate discrimination equates to defeat the unduly generalized stereotype or prejudice that has been ingrained into the commonsense of the age. Because of the anti-majoritarian characteristics, issues concerning the protection of minorities would most likely arouse controversy in social and political arenas, especially in a democratic society resting upon the principles of majority rule. Yet, the concept of liberal democracy does not merely mean compliance with majority rule. The majority rule without the protection of minority rights is nothing more than formal democracy and tyranny of the majority alike. The protection of minorities, of course, had best be made by legislative and executive bodies with democratic legitimacy, but due to the nature of the principles of democracy which include the majority rule, governmental decisions are likely to be made by the will of the majority, and the opinion of minorities tends to be marginalized by and large in the decision-making process. In this regard, an independent judiciary, as a power not elected by the people, that is, not affected by the majority rule, needs to be the “last resort” to protect the minority against majoritarianism. The United States Supreme Court has long been consolidated the primary duty of the judiciary to protect minorities by establishing judgments and legal principles aiming at social integration based on diversity. Under the Due Process Clause and Equal Protection Clause, the Court has struck down laws that discriminate based on race, alienage, national origin, illegitimacy, gender, sexual orientation, etc., holding the tone of judicial activism. The experience of the United States Supreme Court, which has taken the lead in minority rights protection, implicates the importance of the Korean judiciary’s role in realizing the social integration in a multicultural society, and in eliminating aversion and irrational discrimination against minorities. Therefore, as evidenced in the United States Supreme Court cases, this paper acquaints the people with the importance of the judiciary’s role in the protection of minorities and suggests that the Korean judiciary plays a key role to protect minorities through an active interpretation of (constitutional) law, proactively influencing important governmental decision-making and social changes for minority issues.

대의제민주주의에서 소수자 보호의 헌법적 의의와 구조

이우영 ( Woo Young Rhee ) 서울대학교 법학연구소 2007 서울대학교 法學 Vol.48 No.3

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. In a pluralistic democracy that simultaneously pursues autonomy and equality under the Constitution, no absolute standard may be applicable to assess individual laws and policies, and the legitimacy of laws and policies may justifiably be measured and determined increasingly by the democratic legitimacy of the means and processes adopted to produce such laws and policies. Further, under the current state of representative democracy in the Republic of Korea, the most effective mechanism to protect and enhance the rights of the minorities may function at the early phase of political process where the subject matters of legislation and policymaking are introduced, deliberated and decided. Hence, the participatory engagement of the minorities in the earliest possible stage of the legislative and policymaking process, in, for example, constituting and operating the National Assembly and local legislatures, for the public expression and discussions of their interests and concerns is of particular significance, considering, especially, the relationship between the legislative process and the constitutionality review by the Constitutional Court over the statute, from the standard of democratic legitimacy. While equality and participatory democracy through free and regular elections by universal suffrage and equal voting is the ideal of any representative democracy, the nature and function of the election in its original design and meaning may not remain unchanged as the influence of larger political parties and well-organized and better-funded interest groups upon the entire electoral system increases. Where there exists no mechanism for the expression and representation of the interests and concerns of minorities in constituting the institutions making the laws and the policies governing the community, realization of substantive equality in a representative democracy is no longer possible. More specific legislative reform efforts are due in this regard, in the following areas: the proportional representation system under which any and all individual candidates are required to be endorsed by a political party; the election law that does not allow an individual to simultaneously run for the candidacy in an electoral district and for the proportional representation, while there exist reasonable alternatives thereto; laws regula