절차적 적법절차의 적용방법

Abstract

Procedural due process guarantees fair procedures when government deprives an individual of life, liberty or property. Generally and essentially, procedural due process requires that a meaningful opportunity to be heard must be afforded to the individual. Procedural due process plays a role in preventing arbitrary or unilateral deprivations of liberty or property through this requirement. However, the Supreme Court of U.S.A. applies a flexible procedural due process standard whereby balancing test is employed on a case-by-case basis to determine what particular process is due in a given situation. Constitutional Court of Korea also applies a similar flexible balancing test. A predetermination process is important, but it is not regarded necessary in some cases. Although this balancing test enables fair and inexpensive procedural protections of wide range of interests, the problem of uncertainty and disparity that is accompanied in the course of application is yet to be solved. The Constitutional Court needs to give more structure to the balancing test and clarify the relationships between procedural due process and other constitutional protections.