헌법재판에서의 가처분 - 최근 입법논의와 관련하여 -

The Constitutional Court Act (the “Act”) provides for interim remedies or preliminary injunctions only in the cases of dissolution of a political party and jurisdictional disputes. Nevertheless, since the decision over Judicial Examination case(2000 Hun-Sa 471) delivered on December 8, 2000, the Constitutional Court of Korea (the “Court”) has issued a series of decisions that the Court is empowered to grant an interim remedy in constitutional petitions pursuant to Section 68.1 of the Act. Thus, the Court deserves some criticism, in that interim remedies still have no clear constitutional or legal grounds, and in that it is unclear whether interim remedies in constitutional petitions concerning laws and regulations have similar binding force as the Court's final decision of nonconformity to the Constitution. Recently a bill for amendment to the Act which allows interim remedies only in constitutional petitions related to Section 68.1 of the Act has been laid before the National Assembly, and approximately 10 years ago the Korean Public Law Association proposed a draft legislation to allow interim remedies in all constitutional cases. Above all, it would be against the provisions of the Act or the doctrine of separation of powers, if the above-mentioned bill or draft legislation provides that the Court could grant a stay of laws or order an active interim measure. Further, it is hard to find out laws of any other countries that contain general provisions of interim measures or special provisions of interim measures for a stay of law, except for the law of Germany. However, the German constitutional system needs to be differentiated from the Korean constitutional system, in that the Federal Constitutional Court is the highest court in the judicature of Germany and has much broader power, and in that special historical backgrounds exist just in the case of Germany. Moreover, interim measures for a stay of laws may be equivalent to a prior decision of nonconformity to the Constitution, which is inconsistent with the purpose of interim measures. And such interim measures may have much greater retroactive effect, as compared to an ordinary final decision concerning unconstitutionality, given that, by court’s order of such interim measures, the later decision concerning unconstitutionality can actually take effect as of the date of such court order, the result of which is not consistent with the Section 47.2 of the Act. Also, it could be contradictory directly to the Section 113.1 of the Constitution providing for the quorum requirement, because, under the proposed bill or draft legislation, a preliminary injunction for a stay of laws may be decided by justices less than a quorum (i.e., 6 justices). Furthermore, an interim remedy like a temporary ruling along with a stay of a law would infringe legislative power and, if also allowed in a constitutional petition made pursuant to the Section 68.2 of the Act, a stay of a related trial would not only contradict relevant provisions of the Act (i.e., 75.7) and but also fundamentally infringe the independence of the judiciary. Therefore, in this regard, it is undesirable to introduce the general provisions of interim measures, so by adopting additional provisions that prevent the Court from issuing a stay of laws or an active interim measures, the proposed draft legislations need to be reconsidered and revised to the effect that allowing interim measures under the Act must be limited to a reasonable extent in light of the constitutional order.