적법절차판례

Abstract

Traditionally Korea Constitutional Court have used the principle of prohibition of restriction of intrinsic contents of Bill of Rights in Constitutin in order to regulate nation's power such as legislative power or administrative action influencing civil rights and freedom instead of Due process of law principle. But now is time to reevaluate the Due process of law principle as a Constitutional principle as a standard to control law affecting Bill of Rights. The purpose of this article is to review the concept of due process of law provided in Constitution article 12 compared with U.S. Constitution Amendment 5th and 14th due process of law. There is no Constitutional definition of due process of law in detail. As Constitutional Court decided that Due process of law was adopted from U.S. constitution, we need to study and research the concept of U.S. Constitution in order to know the concrete meaning of Due process of law. The concept of due process originated in English Common Law. The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, an agreement signed in 1215 that defined the rights of English subjects against the king, is an early example of a constitutional guarantee of due process. That document includes a clause that declares, "No free man shall be seized, or imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch. 39). This concept of the law of the land was later transformed into the phrase "due process of law." By the seventeenth century, England's North American colonies were using the phrase "due process of law" in their statutes. According to the U.S. Court, the meaning of due process of law is a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious. Korea Constitutional Court also accepted the same concept of Due process of law as U.S. Court decision. The application of constitutional due process is traditionally divided into the two categories of Substantive Due Process and procedural due process. Constitutional Court have applied the Due Process Clause to review laws and administrative actions affecting civil freedoms protected by the Bill of Rights. The problem is that the discretion of Constitutional Court is so broad in interpretation of Due process of law concept that it might be infringe legislative branch's legislative power. This paper is not meant to make new idea but to suggest and remind legal professional of some problem which may cause disbelief to Constitutional Court decision among people. Consequently in order for people to understand and agree Constitutional Court's decision, we need to study and simply or materialize the legal terms "fair and reasonable" which means the substantive contents of Due process of law.