미국헌법판례상 권력분립이론의 전개와 규범적 평가

• 영문명: The Unfolding of the Doctrine of Separation of Powers and Its Normative Assessment in the U.S. Constitutional Law Cases
• 발행기관: 한국헌법학회
• 저자명: 석인선(Seok In-sun)
• 간행물 정보: 『헌법학연구』憲法學硏究 第9卷 第3號, 425~456쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.10.01

영문 초록

The Constitution of the U. S. apportions or divides the powets of national government into three different branches - the legislative(Congress), the executive(the President and those appointed to assist him or her), and the judicial(the federal courts). This is the principle of separation of powers. The issues of separation of powers arise when it is claimed that one branch of government has usurped or encroached upon the function of another branch. While the doctrine of sepatation of powers protecrs each branch of the government against unwarranted encroachment by the other branches, these limitations exist not for the benefit of each branch as such, but as a means of safeguarding the rights of individuals. The violations of separation of powers therefore cannot be waived by the branch whose powers may have been impaired. For this reason, when the judiciary reviews a law challenged on the grounds of separation of powers, it is irrelevant that the branch whose authority has been usurped may have consented to the intrusion. Alrhough the term, separation of powers, does not appear in the Constitution, the principle of the separation of powers is reflected on the very structure of the federal Constitution. Article I enumerates the 'legislative powers', Article Ⅱ discusses the "executive power", and Article Ⅲ defines the "judicial power", As a safeguard against the abuse of power, the Constitution incorporates a system of checks and balances through which the branches of government often share or articipate in functions principally assigned to a coordinate branch. By allocating the powers of the federal government among three branches, and yet at the same time commingling those powers so that many governmental functions require cooperation among the branches, the Founders deliberately created a system in which there is inhetent tension between the three branches. It is inevitable that this scheme of government will give rise to boundary disputes in which it is claimed that one branch has aggtandized itself by usurping authority that belongs to anothet btanch, or that one branch has encroached upon the dependence, authority, or integrity of a coordinate branch. These so-called interbranch disputes are often handled by the competing branches themselves through the give and take of the political process. This article examines and assesses the troubles and unexplained disparity of approaches in the jurisprudence of the Supreme Court in separation of powers cases. The Second section of the article describes three basic approaches used to analyze separation of powers cases: (1) does the challenged action transgress specific provisions in the Constitution; (2) does the challenged action constitute an encroachment on the powers of another branch; or (3) does the challenged action substantially impair the ability of one branch to carry out its constitutionally mandated responsibilities? In addition, I ask whether, in dealing with these types of challenges, the courts have appropriately responded to the questions that have troubled observers. Then, I point out the absence of the respects of safeguarding the rights of individuals in the jurisprudence of the Supreme Court in the separation of powers cases, and identify the Court's use of radically different methods of constitutional interpretation and of different standards for determining the availability of judicial review. I also consider the Court's failure to justify its different approaches and discuss how neither interpretive nor political theory provides a ready explanation for the Court's behavior. Finally, I offer some observations and suggestions on the judicial role in the separation of powers cases. The Supreme Court's separation of powers jurisprudence should be an attempt to mold a body of law that adequately maintains the balance between the Congress and the President in a way that preserves and strengthens democratic rules. The Madisonian goal of avoiding tyran

목차

Ⅰ. 미국헌법상 권력분립원리의 일반이론

Ⅱ. 권력분립관련소송에서 미연방대법원의 해석접근법과 그 평가

Ⅲ. 권력분립관련사건의 규범적 판단근거

[참고문헌]

[ABSTRACT]