헌법재판에서의 헌법 또는 법률의 해석 적용

Construction of Constitution or Act and It's Application in Constitutional Adjudication

The writer emphasize in this essay the fundamental attitude for constructing the Constitution and the laws. First, the Constitutional Court should ascertain whether the interpretation of the laws required to apply to the proceeding cases has already exist and, if exist, the Constitutional Court should follow the interpretation by the Supreme court unless such interpretation contravenes the Constitution. Second, as the ultimate power of constructing the Constitution belongs to the Constitutional Court, the Court should take affirmative attitude to correct the Supreme Court's disobeying attitude by rejecting the Constitutional Court's construction. The main sentence of the Article 68(1) provides "Any person who is infringed his fundamental rights guaranteed by the Constitution due to exercise or non-excercise of the public, excluding judgment of the court, may request the Constitutional Court an adjudication on constitutional complaint." For this reason the Constitutional Court grants the constitutional complaint on judgment of the courts only when the adjudicating courts apply the laws already declared unconstitutional by the Constitutional Court. The writer asserts to extend the granting the constitutional complaints on judgment of the court. The necessary areas are as such where ① the Supreme Court apply arbitrarily by enlarging the ruling of the Constitutional Court, ② the Supreme Court evades the binding force of the Constitutional Court's decision of unconformity to Constitution, ③ the Supreme Court construct the unconstitutionality of the law directly without requesting an adjudicate of unconstitutionality to the Constitutional Court by the Article 41(1) of the Constitutional Court Act.