헌법재판과 가처분 제도

• 영문명: Constitutional Litigation and Temporary Injunction
• 발행기관: 세계헌법학회 한국학회
• 저자명: 박종보(Jong-Bo Park)
• 간행물 정보: 『세계헌법연구』世界憲法硏究 第13卷 第1號, 193~222쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.01

영문 초록

  The Korean Constitution enumerates all of the Constitutional Court"s jurisdiction(Article 111 [1]). The court is authorized to hear cases involving the following actions:
  1. Concrete, or collateral, judicial review(of the constitutionality of statutes upon the referral of the ordinary courts in an ordinary lawsuit)
  2. Impeachment of the high-ranking public officials(including the President, the Prime Minister, Ministers, judges, etc.)
  3. Dissolution of political parties(whose purposes or activities violate the democratic basic order, upon the petition of the government)
  4. Competence disputes between state agencies, between state agencies and local governments, and between local governments
  5. Constitutional complaint(brought by individuals and entities vested with particular rights under the Constitution)
  The Constitutional Court Act has no general clause of temporary injunction which applies to each of the jurisdictional categories, but has only two provisions which apply to dissolution of political party and competence dispute procedures. The Act contains no express reference to the applicability of temporary injunction to the concrete judicial review, impeachment and constitutional complaint procedures.
  Meanwhile, when an ordinary court refers the issue of the constitutionality of a statute or a provision of a statute to the Constitutional Court, the court"s adjudgment is suspended until the case is decided by the Constitutional Court. Likewise, if the National Assembly impeaches a high-ranking government official, that official"s authority to exercise the constitutional powers is suspended until the Constitutional Court decides whether he or she will be dismissed or not. There is no such clause, however, with respect to the constitutional complaint.
  Section 40 of the Constitutional Court Act provides that "The provisions of the Civil Procedure Act shall apply correspondingly to the procedure of the Constitutional Court, less the Constitutional Court Act should contain specific provisions, and as far as they are in accordance with the nature of the constitutional litigation."
  The Constitutional Court has upheld only four temporary injunction cases, including one competence dispute case and three constitutional complaint cases. The rationale of those injunctions is that the Constitutional Court can apply the temporary injunction provisions of the Civil Procedure Act with necessary modifications in the Court"s cases. Many of the constitutional law scholars agree to this doctrine.
  From my point of view, the Constitutional Court is justified in taking a prudent attitude, deciding temporary injunction cases. Nevertheless at least one of the temporary injunctions upheld by the Court was not necessary or urgent. Thus the Constitutional Court might as well be more cautious, especially with respect to constitutional complaint, under the present circumstances. Because it must be performed by the legislature to create a new lawsuit procedure.
  On the contrary, the Court needs to be more active in order to effectively protect the individuals" constitutional rights. The legislature should enact new express regulations which extend the applicability of the temporary injunction to all of the jurisdictional categories and prescribe the requisites for a temporary injunction and its effects on the respective jurisdictional categories.

목차

Ⅰ. 헌법재판에서 가처분의 필요성과 법률상 근거
Ⅱ. 외국의 입법례
Ⅲ. 헌법재판소의 가처분 사례
Ⅳ. 헌법소원 등에 대한 가처분의 허용 여부
Ⅴ. 개별적 검토
Ⅵ. 맺는 말
ABSTRACT

키워드

헌법재판 가처분 권한쟁의 헌법소원 법령에 대한 헌법소원 constitutional litigation temporary injunction competence dispute constitutional complaint constitutional complaint against statutes