통치행위에 관한 소고

A Study on Political Question

Political question is the act which has highly political character and It is the act which is excluded from Judicial review on account of its highly pohtical character. The theory of political question has been developed for the first time through the cases of Conseil d'Etat in France where the system of administrative litigation had formerly been developed and It was called as "Acte de gouvernment", This theory was later transported to Germany, where it was called as "Regierungsakt" or "rechtswegfreie Hoheitsakte" and Great Britain, where It was called as "Act of State" or "Prerogative", In the United States of Amenca It is called as "political question", Japan also used this term m the case of Sunakawa incident In korea this term was used in a lot of cases including martial law case, mal apportionment case and so on, In order to scrutmize political question, this writer divided this thesis into seven parts, The conclusions of this study are as follows First, the concept of political question is ambiguous and fluid in that it is formed by Judge-made law, not by the substantive law, Therefore it is next to Impossible to define exactly and enumerate political question, It is only possible to clear up its accurate definition through the cases Second, in many countries they admit political question which should be distinguished from ordinary administrative acts owing to its highly political character and political-fitted purpose, though general clauses are adopted in administrative litigation and the way of Judicial remedy to the political question is guaranteed. But recently they tend to curtail the scope of political question as narrowly as possible Third. it is desirable that recent trend of decisions of korea's supreme court and constitutional court on political question cases is positive