프랑스 헌법원판결과 법률에 대한 조약우위의 원칙

The Fundamental Rule of Treaty-Predominance to Laws in France

In fifth republic of France(1958), article 61 of the Constitution authorized the Conseil d’Etat to judge the unconstitutionality of laws. The Conseil d’Etat has judged the unconstitutionality of laws on the authority of this power. Presently, the Preamble of the Constitution acknowledge the trial-normity of ‘the Declaration of Rights of Human and Citizen in 1789’, the Fundamental Rule acknowledged by the Third Republic Laws and the Preamble of the Constitution in 1946. These is called the Constitutional-Block in a lump. But it is the Protection-Treaty of Human Rights and the Fundamental Liberties in Europe(called in next the Europe Treaty of Human Rights). This Treaty regulated the establishment of the Committee of Human Rights in Europe, the Court of Human Rights in Europe and the Committee of the Ministerial in Europe, in Strasburg. Also this Treaty levy the duty of the respect of the Human Rights for the contracting parties in the Treaty and aim at the remedy of the infringement of the Human Rights that not can be remedied by all remedy systems of the contracting parties in the Treaty. But the Conseil d’Etat in France and the Court of the Human Rights jointly aimed at the protection of Human Rights, nevertheless be different from the method of investigation. Well known, the former adopt the metaphysical unconstitutionality, the latter is the concrete unconstitutionality in the matter of the infringement of Human Rights. The Treaty of Human Rights in Europe consists of the Constitution(the Constitution-Block). Therefore, I regard that accelerate the function of the protection of Human Rights if the Conseil d’Etat can judged the suitability-inspect of the Laws to Treaty. But the Article 55 of the Present Constitution regulated the Treaty-Predominance to Laws. It is important that how interpretate the Treaty-Predominance to Laws. Therefore, this thesis aimed at the Rule of the Treaty-Predominance to Laws and aimed that whether or not the Constitution-Block included the Treaty of Human Rights in Europe by investigating the cases of the suitability of the Laws to the Treaty of the Conseil d’Etat.