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

다국어 초록 (Multilingual 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. 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