성문헌법국가에 있어서 관습헌법의 의미에 관한 연구 - 헌재 2004. 10. 22. 2004헌마554ㆍ566과 관련하여 -

A Study on the meaning of Conventional Constitution in a written Constitution State

The last year, the Constitutional Court gave several decisions regarding important policies or agenda on which the future of our nation is dependant. Everytime a decision was made, people showed various reactions. In d democratic state, people's freely opened expression of opinion is obviously something to be protected. But if it crosses a particular line and throws social order into disarrangement, it only does damage to people, regardless of its original intention. This case makes us recognize that people's overreaction can keep the Constitutional Court from proper function and bring counter effect to the right-deliverance-system. Conventional constitution is the legal source of common-law-based nation. It is a correspondent concept of written constitution and appeared to explain the constitutions of nations that did not enact a constitution in their short history. A heated debate on conventional constitution already developed in Germany in the 1950s. And as a result, they reached a conclusion that conventional constitution is not needed in a written constitution-based-nation and that the comprehension of written constitution would do. Of course, there remains some arguments because of a few abstract constitutional articles. Nonetheless, we must recognize that the existence of conventional constitution has no longer a meaning in a written constitution-based-nation. New administrative city act has lost its effect according to the decision of the Constitutional Court. But this remains serious. In this case, the legislature, administration, and even jurisdiction (the Constitutional Court) have confused the whole nation. Legislators were not in prudence to consider the constitutional view in enaction the law, and the administration is much of responsibility did not conduct cautions policies and laws to reach the agreement of people. Such responsibilities could not be an object of comparison with the Constitutional Court. But the Constitutional Court has reached a conclusion of logical contradiction, questioning people of its own justifiability. A more elaborate "logic of law comprehension" is required of the Constitutional Court afterwards. It is stated in the constitution that all nation's body and people must accept the decision of the court, once it is made. As long as the constitution commits the court this right, we must accept the decision.