비례 원칙에서의 이익형량과 법치주의원리 = Balancing in the Proportionality Test and The Rule of Law

다국어 초록 (Multilingual Abstract)

Proportionality test is acknowledged as a universal criterion of constitutionality. Proportionality is being used to assess whether restrictions and measures affecting human rights appropriately respond to legitimate public interests. It proceeds according to the following four inquiries. First, the objective of the legislation setting out the limitation must be of sufficient importance to warrant infringing a right. Second, a specific measure taken by the government should be suitable for a legitimate government purpose. Third, there should be no less restrictive measure, which is equally effective, is available to achieve the purpose of the measure. Finally, there must also be a fair balance between the individual’s rights and the public interests concerned.
The last test of proportionality is the proportionality in the strict sense. This is the most important of proportionality’s tests. This test requires a balancing of the benefits gained by the public and the harm caused to the constitutional right through the use of the means selected by law to obtain the proper purpose. Questions have been raised about whether balancing test tends to undermine the predictable operation of the legal system. The mechanisms of balancing private and public interests are more likely to resort to an intuitive and discretionary judgment of comparative value.
In consideration of this, the Supreme Court of Canada has not invalidated a provision solely for failure to balance the costs and benefits of its implementation if it satisfied other criteria of proportionality test. Rather, the Court use balancing to reinforce their conclusions under “rational relation” and “minimum impairment” components of the proportionality test. This approach on the proportionality analysis limited to evidence and facts, ensures a legal system that operates more predictably precisely because it contributes to minimize the subjective judgment of judges.
But balancing test is just as predictable, coherent and transparent as the other three inquiries of the proportionality test. As a result, there is no need to abandon balancing test or to recognize unpredictability in the review of rights limitation. A normative conception of the rule of law accepts the demand for congruence not only between the exercise of public powers and formal rules, but also between the exercise of public powers and the normative commitments expressed in constitution as a constitutional touchstone.