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@article{ART001691120},
author={Kim, Ha Yurl},
title={Judicial review of limitations on constitutional liberties},
journal={DONG-A LAW REVIEW},
issn={1225-3405},
year={2012},
number={56},
pages={1-34}

TY - JOUR
AU - Kim, Ha Yurl
TI - Judicial review of limitations on constitutional liberties
JO - DONG-A LAW REVIEW
PY - 2012
VL - null
IS - 56
PB - The Institute for Legal Studies Dong-A University
SP - 1
EP - 34
SN - 1225-3405
AB - Some rulings of the Constitutional Court of Korea on cases concerning constitutional liberties need critical review. Practical concordance is required when two conflicting liberties collide, and principle of proportionality(proportionality test) is generally invoked as a way to realize it. But laws adjusting collision between liberties have ambivalence: they restrict liberties on one hand, they protect liberties on the other. Principle of proportionality is suitable to apply when state –in pursuit of public interests- acts as a encroacher on liberties. It is not so when state –as a mediator- should adjust conflicting interests of liberty holders. Here can be suggested proportional balancing test as an alternative which takes various conflicting elements into account such as urgency to protect, cost and efficiency, extent of damage and so on. An exercise of liberty that touches conflicting liberty of others only through the disruption of public interests should not be classified as a collision of liberties. Thus the principle of proportionality, not the proportional balancing test should be applied hereupon. So called alleviated principle of proportionality recently coined by the Constitutional Court of Korea has methodological problem in that it confuses the layers of criteria. Also the criteria of it is too obscure to guarantee consistency in review. Furthermore the use of it has expanded to social rights, bringing about disorder in the theoretical system of judicial review.
KW - constitutional liberty;practical concordance;principle of proportionality;collision of liberties;proportional balancing test
DO -
UR -
ER -

Kim, Ha Yurl. (2012). Judicial review of limitations on constitutional liberties. DONG-A LAW REVIEW, 56, 1-34.

Kim, Ha Yurl. 2012, "Judicial review of limitations on constitutional liberties", DONG-A LAW REVIEW, no.56, pp.1-34.

Kim, Ha Yurl "Judicial review of limitations on constitutional liberties" DONG-A LAW REVIEW 56 pp.1-34 (2012) : 1.

Kim, Ha Yurl. Judicial review of limitations on constitutional liberties. 2012; 56 : 1-34.

Kim, Ha Yurl. "Judicial review of limitations on constitutional liberties" DONG-A LAW REVIEW no.56(2012) : 1-34.

Kim, Ha Yurl. Judicial review of limitations on constitutional liberties. DONG-A LAW REVIEW, 56, 1-34.

Kim, Ha Yurl. Judicial review of limitations on constitutional liberties. DONG-A LAW REVIEW. 2012; 56 1-34.

Kim, Ha Yurl. Judicial review of limitations on constitutional liberties. 2012; 56 : 1-34.

Kim, Ha Yurl. "Judicial review of limitations on constitutional liberties" DONG-A LAW REVIEW no.56(2012) : 1-34.