행정부작위 헌법소원에서의 작위의무와 국가의 기본권보호의무 - 헌법재판소 2011. 8. 30.자 2006헌마788 결정【대한민국과 일본국 간의 재산 및 청구권에 관한 문제의 해결과 경제협력에 관한 협정 제3조 부작위 위헌확인】에 대한 판례평석을 겸하여 -

Korean Constitutional Court Act declares “Any person who claims his/her basic right guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint, except on occasion related to the judgements of the ordinary courts, to the Constitutional Court”(Article 68①). So constitutional complaint against non-exercise 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 has to be under an obligation derived from the Constitution to do specific action". Therefore if the constitutional complaint could not meet the required conditions, it would be dismissed by the Constitutional Court. All the state organs, however, should guarantee the fundamental human rights 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 argue the Constitutional Court should change the opinion about demanding the limited conditions to the constitutional complaint against administrative omissions.