Article 37(2)
'The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.' This is the general limitation clause.
Form: by statute
Only laws passed by the National Assembly can restrict rights. Delegated decrees need specific delegation, and restricting laws must be clear enough for people to know what is prohibited, with stricter clarity for criminal law and limits on expression.
Legitimate purposes
A restriction must serve national security, public order or public welfare, not private or factional interests.
Proportionality
- Legitimate aim
- Suitability: the means actually advance the aim
- Least restrictive means: no less intrusive alternative exists
- Balance: public benefit outweighs the private burden
The Constitutional Court has used this four-step test since the early 1990s, applying arbitrariness or proportionality review separately for equality claims.
Essential content
A restriction may not hollow out the core of a right. Scholars debate absolute and relative views of that core, which becomes acute for rights like life where restriction means deprivation.
References
- 대한민국헌법 제37조 제2항.
- 헌법재판소 1990. 9. 3. 89헌가95 결정(국세기본법 제35조 제1항 제3호 위헌심판).
- 허영. (2023). 『한국헌법론』(전정19판). 박영사.
- 성낙인. (2024). 『헌법학』(제24판). 법문사.
- Alexy, R. (2002). A Theory of Constitutional Rights (J. Rivers, Trans.). Oxford University Press.