2009년 헌법재판소 판례 회고

• 영문명: Review of 2009 Constitutional Cases: evaluation of the constitutional court s judgments of delegated legislation
• 발행기관: 한국국가법학회
• 저자명: 홍석한(Hong, Seok Han)
• 간행물 정보: 『공법논총』제6호, 1~20쪽, 전체 20쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.05.30

영문 초록

The administrative power performs a reinforced role with the necessity of quick, specialized and flexible legal action. A broader delegation of the legislative authority become increasingly in need and justified as the society changes into a more complex and diversified one. The legislature tends to delegate the legislative authority without serious and careful consideration. Rather the regulatory agencies of government have established real laws. In any event, the legislative body should carefully consider the mission from the constitution and the guarantee of people s fundamental rights. This paper deals with analysis and evaluation of the constitutional court s judgments of delegated legislationin 2009. Although, we should appreciate the great result of the constitutional court to the control of the delegated legislation, the constitutional court arouses criticism in some respects; the constitutional court s criteria lacks consistency, a proper balance between necessity and constitutionally limits of the delegated legislation is needed, concreteness and clarity of delegation should be applied consistently with the occasion, more active attitude should be took up to set up an accurate system of the administrative legislation. The constitution provides constitutional constraints on the delegation of legislative authority saying that it can be permitted only when concrete and bounds should be limited. Also, the constitution shows concrete examples of the doctrine of legal reservation here and there. Even if it is needed to admit the delegation, it may violate constitutional principles like as Parliamentarism, Separation of powers, Rule of law. So, essential legislative powers have been reserved and protected from the administrative abuse and the constitutional court should make greater efforts to present the mission of the legislators and avoid an arbitrary decision of the executive.

목차

Ⅰ. 서론

Ⅱ. 위임입법에 관한 결정례

Ⅲ. 위헌심사 기준에 대한 분석

Ⅳ. 헌법재판소 결정에 대한 평가

Ⅴ. 결어

키워드

delegated legislation constitutional court prohibition of broad delegation priciple of definiteness rule of law separation of powers