헌법재판의 법적 성격 - 헌법재판소의 논증도구인 비례성원칙과 평등원칙을 예로

Legal Characteristic of the Constitutional Judicature

&nbsp;&nbsp;Constitutional trials operate the function of the judicature. But they have the characteristic that the form of legal application called balancing (Abw？gung) is oft used in it, they are procedures of argumentations opened up to the moral, and they can be open procedures because of the openness of the constitutional law itself. Nonetheless constitutional trials operate still the function of judicature, and they as the function of the judicature operate the function of the argumentation. Therefore constitutional trials are distinguished from the function of the policy. In addition, the rationality of constitutional trials as the function of the argumentation is decided whether or not the competence of the legislator and the one of the constitutional court can be wellbalanced.<BR>&nbsp;&nbsp;The principle of the proportion of the narrow meaning, the key principle of the principle of the proportion, that is the argumentation tool which is quoted in almost every constitutional trials is in the substance balancing. Therefore, the rationality of constitutional trials as argumentation procedures is decided whether or not these procedures of balancing can be reasonable ones. Also, balancing of values based on equal treatment and inequal treatment related the comparative object is the essence of the principle of the equality that is as often quoted as the principle of the proportion. Therefore, the rationality of constitutional trials as argumentation procedures is depended whether or not procedures of the balancing realizing the principle of the equality can be reconstructed as reasonable procedures.