기본권구제수단으로서의 법령소원에 있어서 보충성원칙의 재검토

Reexamination of the Rule of Exhaustion of Other Remedies in Constitutional Complaints concerning Laws, Executive Orders, Rules, and Regulations

&nbsp;&nbsp;The rule of exhaustion of other remedies as the legal prerequisite to constitutional complaintsstipulated in Article 68, paragraph 1 of the Constitutional Court Act should be firmly observed even with respect to the constitutional complaints whose subject matters concern ordinary laws, executive orders, rules, and regulations.<BR>&nbsp;&nbsp;The precedent decisions of the Constitutional Court have consistently pronounced that other legal remedies mean only thosewhich can nullify the power of state directly, but do not meanother procedures in ordinary courts such as civil litigation where such matters can be properly dealt with, and that when subject matters challenged in constitutional complaints are norms such as laws and so on, the rule of exhaustion of other remedies is not applied as the legal prerequisite because there is no procedure in ordinary courts to nullify such norms directly.<BR>&nbsp;&nbsp;However, the German and Austrian cases strictly applythe rule of exhaustion of other remedies to all cases. In addition, systematic and coherent interpretation may well be found betweenArticle 107, paragraphs 1 and 2 of the Korean Constitution and Article 68 paragraphs 1 and 2 of the Korean Constitutional Court Act. These interpretations strongly support the necessity for the Constitutional Court to reevaluate its prior decisions to the direction to acknowledge that other procedures in ordinary courts are also legal remedies meant in applying the rule of exhaustion of other remedies as long as they are efficient for the relief of the relevant rights. The rule of exhaustion of other remedies should be equally maintained even when subject matters disputed under constitutional complaints by Article 68, paragraph 1 of the Constitutional Court Act are such norms as ordinary laws, executive orders, rules, and regulations.