헌법재판에서의 헌법 또는 법률의 해석 적용

• 영문명: Construction of Constitution or Act and It's Application in Constitutional Adjudication
• 발행기관: 원광대학교 법학연구소
• 저자명: 박찬주(Park, Chan-Ju)
• 간행물 정보: 『원광법학』제26권 제4호, 359~400쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.12.30

영문 초록

The writer emphasize in this essay the fundamental attitude for constructing the Constitution and the laws. First, the Constitutional Court should ascertain whether the interpretation of the laws required to apply to the proceeding cases has already exist and, if exist, the Constitutional Court should follow the interpretation by the Supreme court unless such interpretation contravenes the Constitution. Second, as the ultimate power of constructing the Constitution belongs to the Constitutional Court, the Court should take affirmative attitude to correct the Supreme Court's disobeying attitude by rejecting the Constitutional Court's construction. The main sentence of the Article 68(1) provides "Any person who is infringed his fundamental rights guaranteed by the Constitution due to exercise or non-excercise of the public, excluding judgment of the court, may request the Constitutional Court an adjudication on constitutional complaint." For this reason the Constitutional Court grants the constitutional complaint on judgment of the courts only when the adjudicating courts apply the laws already declared unconstitutional by the Constitutional Court. The writer asserts to extend the granting the constitutional complaints on judgment of the court. The necessary areas are as such where ① the Supreme Court apply arbitrarily by enlarging the ruling of the Constitutional Court, ② the Supreme Court evades the binding force of the Constitutional Court's decision of unconformity to Constitution, ③ the Supreme Court construct the unconstitutionality of the law directly without requesting an adjudicate of unconstitutionality to the Constitutional Court by the Article 41(1) of the Constitutional Court Act.

목차

Ⅰ. 머리말

Ⅱ. 법률의 해석

Ⅲ. 헌법의 해석

Ⅳ. 법원의 헌법해석과 이에 대한 통제

Ⅴ. 맺음말

참고문헌

Abstract

키워드

헌법 또는 법률의 해석 법원의 법률해석 전권성 헌법합치적 헌법해석 헌법해석주체로서의 헌법제정권력 재판소원 construction of the Constitution or laws exclusive power of the court to interpret laws construction in conformity with the Constitution supreme power of making Constitution as the entity of constructing the Constitution constitutional complaint against judgment adjudicated by the court