행정청의 부작위로 인한 기본권 침해의 구제 ― ‘한일 청구권협정’에 따른 중재요청불이행 위헌확인 사건에 대한 헌법재판소 결정(98헌마206)의 검토를 포함하여 ―

Remedies of an Infringement on the Basic Rights by the Administrative Omission Sa, Bong Kwan* Korean Constitutional Court Act provides that “Any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint, except the judgements of the ordinary courts, with the Constitutional Court”(Article 68①). So constitutional complaint against omission of administrative power could be filed. By the way, the Constitutional Court declared “Administrative omission can be subject matters of constitutional complaints only when the administrative agency should be under an obligation derived from the Constitution to do specific action and it is clear through constitutional interpretation that the government is obligated to do specific action for the protection of basic rights”. Therefore if the constitutional complaint could not be met the required conditions, it may be dismissed by the Constitutional Court. However all the state organs should guarantee that the fundamental human rights be secured from all danger(Article 10 of the Korean Constitution). It is under the legal duty to provide the victim whose basic rights have been violated by administrative omission with effective remedies, and to take preventive measures to keep all citizens safe. Accordingly I think the Constitutional Court should change the opinion about demanding the limited conditions to the constitutional complaint against administrative omissions.