헌법재판과 정책결정 - 국가정책 결정과정에 대한 적극적 헌법심사의 이론적 모색 -

Although the general jurisdiction of the Constitutional Court on constitutional litigations is stipulated by the provisions of the Constitution, doubts are still prevalent concerning whether the Constitutional Court has the qualification relevant to nullify politically crucial decisionmakings made by the President or the Parliament which is directly elected by the people, hence considered having the so-called 'democratic legitimacy'. In light of the feeble democratic representation in its composition, the Constitutional Court may have to try to respect the political decisions by the President or the Parliament in the examinations on the merits of constitutional litigations. However, on the constitutional appropriateness of the formality of norm taken by the Government or the Parliament to execute its policy, the Constitutional Court should examine more actively. In that occasion the Court fulfills the function of deciding constitutionally correct normative road for each political decision to take. Such can be called 'the switchman(aiguilleur) function of the Constitutional Court'. By similar reasoning, the extent of the due process to be taken prior to the political decision making must be screened with strict scrutiny. In such point of view, the widely disputed decisions of the Court, namely the Impeachment of President decision and the Capital Relocation decision held in 2004, should be reevaluated. Furthermore, the generally accepted constitutional principle of 'political question(acte de gouvernement)' should be more strictly applied in order to reduce the possibility of abuse caused by the ambiguity of concept of political question itself. So the political decision makings which are exempt from judicial review should be restricted to acts evidently belonging to international law domain, state emergency domain or clearly declared by the provision of Constitution itself not to be controlled by the examination of the Constitutional Court.