입법과정의 하자에 대한 헌법재판소의 통제와 헌법적 정당성의 문제

A study on the control of the legislative proceedings and the constitutional legitimacy

It is very important to discuss and deliberate about bills in the legislative proceedings and they should be passed by decision by a majority of the members. Moreover discussions and deliberations of the sessions of the National Assembly are open to the public. They are the important principles of the legislative proceedings. In the legislative proceedings if they are not observed by the members, for example the speaker or vice speaker would disturb for the members the right to deliberate and vote, or the proceedings would be conducted secretly, or there would be a filibustering etc., the violation of the principle of the legislative proceedings should be controlled by the Constitutional Court. According to the theory and the precedent of the Constitutional Court, the violation of the principle of the legislative proceedings would be under the jurisdiction on the adjudications on competence disputes. In 1997, and 2009, the Constitutional Court had decided that the promulgation of the passing bills would infringe for members the right to deliberate and vote. But the Court had not decided passing bills as unconstitutional. I think that the Constitutional Court had made an error in judgement, so the decisions of the Court have come under increased criticism by the constitutional scholars and lawyers. Because if the principles of the legislative proceedings would be violated, the result would never be justified by the constitutional legitimacy.