입법권과 헌법재판권의 조화적 관계 정립을 위한 소고

In recent days, a number of socio-political conflicts rise in the aftermath of diversified society and mature democracy. There has been a tendency that the National Assembly and the Constitutional Court whose opposite functions often happened to collide with each other have somewhat rocky relations. Further, stakeholders arbitrarily interpret the problems of it, causing a concern over possible aggravation of a socio-political conflict: a lack of democratic check against the Constitutional Court, and the Constitutional Court becoming too bulky when the politics is heavily leveraged by the Judiciary. This thesis discusses (1) the National Assembly’s power of legislation along with its responsibility for responsive legislation to the Constitutional Court’s decision of unconstitutionality, and (2) the nature and limitation of the Constitutional Court’s right to decide the constitutionality of a statute. In order to suggest solutions to the current socio-political conflict observed around the two branches, this thesis explores detailed approaches to strike a balance between the National Assembly’s power of legislation and the Constitutional Court’s jurisdiction over the constitutionality of a statute by introducing legislation cases of Germany. It can be said that amongst the government organizations, the National Assembly is the most representative of citizens and thus holds the most democratic legitimacy in its functions. In other words, the Constitutional Court should respect the National Assembly’s power to legislate when making a judgment over constitutionality of an established law. The Constitutional Court, therefore, issues different level of judgment on constitutionality of a law, which ranges from “partial constitutional”, “partial unconstitutional” and “potentially unconstitutional”. Though there may be different ideas among the Justices about the right decision on the constitutionality of a law, it is right to say that all of the different levels of judgments have binding powers. Of course the tension in the relationship between the National Assembly and the Constitutional Court is well expected because the Constitution simultaneously bestows opposite powers to the two branches. As expected, many problems did appear: the politics is often influenced by the Judiciary; the Constitutional Court’s decision on constitutionality could not be forced due to the current system of collegial decision-making on the text of judicial decision; and the National Assembly is reluctant to establish a responsive legislation to the Court’s decision of unconstitutionality. To solve above-mentioned problems, first of all, a democratic check against the politics that is influenced by the Judiciary should be established. In other words, the appointment process of Justices should be improved, and a system that can nurture the professionalism of a Justice should be developed. Also, problems of the current system of collegial decision-making on the text of judicial decision should be improved by allowing separate and consecutive decision-making on legality and merits of a case. Furthermore, it is necessary to deliberate an adoption of a system of collegial decision-making on each issue, which will allow a Justice to continue to participate in the decision making on merits of a case even after he/she issued an opinion of dismissal for the decision on legality of that case. Second, it is necessary to make the Constitutional Court’s Order as well as the reasons of the Order have binding powers. Toward this end, it should be required that reasons of a decision be stipulated in the Order. Third, in order to cope with to the National Assembly’s reluctance to establish a responsive legislation to the decision of the Constitutional Court, it would be advisable to adopt the provisional legislation system of Germany, which can be implemented only under an extra emergency case to protect the citizens’ basic rights, and thus gives the law-makers a leeway from the principle of division of powers and violation of the right to legislation. Fourth, there has to be a very clear standard for decision-making on constitutionality. To this end, it is necessary to consider adopting the multi-level review system of the Supreme Court of the United States. In order to adopt the system, however, it is requisite to improve several drawbacks of the system: rigidity of the standard, possibility to hamper practical and direct interpretation of a law by the Court, and lack of internal consistency.