헌법재판소 직무상의 문제 - 법원의 재판에 대한 헌법소원의 문제를 중심으로 -

Jurisdiction of the Constitutional Court -Regarding Constitutional Complaints against the Decisions of the Ordinary Courts-

According to the Art. 68 (1) of the Constitutional Court Act, the Constitutional Complaints against the decisions of the ordinary courts may not be allowed. Probably it is caused by the notion of the Separation and Independence between the Constitutional Court(the Court) and the ordinary courts including the Supreme Court. But it is not persuasive that the decisions of the ordinary courts cannot be reviewed by the Court even though they violate the constitutional rights of the petitioners and are caused by the wrong interpretation of the Constitution. The fact that the Constitutional Complaints against the decisions of the ordinary courts may be allowed does not mean the violation of the Separation and Independence between the Court and the Supreme Court. The historical and institutional meaning of the system of the Constitutional Complaints lies in check and control of the abuse of the judiciary power. The check and control of the abuse of other branches' power can be accomplished by the judicial review and the system of administrative procedure. It is illogical and contradictive that the Court cannot control the power of the Judiciary, whereas it can control the powers of the Legislature and the Executive. Therefore, if the decisions of the ordinary courts violate the rights of the petitioners guaranteed by the Constitution and are based on the wrong interpretation of the Constitution, they can and should be reviewed by the Court through the Constitutional Complaints. Otherwise, who can redress the damage and infringement of the Constitution through the unconstitutional decisions of the ordinary courts, including the Supreme Court? The allowance does not infringe the power of the ordinary courts, including the Supreme Court, because the Court is specialized for the solution of the constitutional controversies, whereas the ordinary courts, including the Supreme Court, are specialized for solution of the statutory or factual controversies. Therefore, rather, the allowance contributes to the Separation and Independence between the Court and the Supreme Court. So, the controversial part of the Art. 68 (1) of the Constitutional Court Act is unconstitutional and must be removed.