2022년 이탈리아 헌법개정과 경제헌법의 생태화 — 한국 헌법개정론에 갖는 함의 —

초록

The 2022 Italian constitutional reform is noteworthy in that it incorporated environmental protection into the Fundamental Principles of the Republic while simultaneously amending Article 41, which governs freedom of economic initiative and the State’s power to direct and coordinate economic activity. Amended Article 9 requires the Republic to protect the environment, biodiversity, and ecosystems in the interests of future generations and expressly recognizes animal protection as a constitutional value. Article 41, in turn, provides that private economic initiative may not be exercised in a manner that harms health or the environment, while also allowing public and private economic activities to be directed and coordinated for environmental as well as social purposes. This article argues that Articles 9 and 41 should be interpreted in an integrated and systematic manner. If Article 9 establishes the environment, biodiversity, ecosystems, and the interests of future generations as Fundamental Principles of the Republic and as objective constitutional principles, Article 41 gives concrete effect to those principles by making them both explicit limits on economic activity and purposes for shaping the economic order. Environmental protection may therefore function not merely as an external constraint imposed on economic activity after the fact, but as an internal formative principle that directs the objectives and instruments of economic, industrial, fiscal, energy, transport, and land-use policies. In this respect, the 2022 reform may be understood not simply as adding the environment to the list of constitutional limits on economic activity, but as laying the constitutional foundations for the ecologization of the economic constitution and for an ecological transition state. The Italian experience suggests that constitutional reform in Korea should not be confined to strengthening the environmental right under Article 35 of the Constitution. The environment, biodiversity, ecosystems, and the interests of future generations should be expressly recognized as objective constitutional principles. At the same time, Article 119 should define life, health, and the environment as limits on economic activity and incorporate climate action and ecological sustainability into the purposes of economic regulation, coordination, and institutional formation by the State. Through a combined amendment of the environmental rights provision and the economic order provision, Korea should seek a constitutional structure in which economic freedom is exercised within ecological limits and the economic order is shaped in accordance with ecological sustainability.

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