헌법소원제도에 대한 새로운 고찰 - 위헌심사형 헌법소원제도의헌법적 문제점을 중심으로

Examination of the Constitutional Petition System – Focusing on the Constitutional Issues of the Petition for an Adjudication on Constitutional Complaint Jung, Jai-hun As the Judiciary and the Constitutional Court of Korea have diverged in their views on their respective authorities of statutory construction, the majority of legal scholars have opined that their divergence is not likely to be reconciled without an amendment to the Constitution. Grounded in a review of the current Constitutional text, this article examines whether the root cause of the many controversies lies in the vague statutory provisions of the current Constitution, with a focus on the so-called “petition for an adjudication on constitutional complaint,” the particular bone of contention in this discourse. The system of petition for an adjudication on constitutional complaint was established under Article 68(2) of the Constitutional Court Act. Statistics have seen a surge in the number of this particular type of constitutional appeal, and the focus of the Constitutional Court’s caseload shifting from the request for adjudication on the constitutionality of laws to the petition for adjudication on constitutional complaint. Nevertheless, the complaint system has hardly ever been the subject of discussion throughout the constitutional history of Korea. It is indeed a peculiar system with rarely any precedent in the world. Although debate persists over whether the inherent nature of the complaint system lies in the constitutional petition regime or the request for adjudication on the constitutionality of laws, the current Constitution did not anticipate this type of constitutional petition or constitutional adjudication request. In short, the constitutional complaint system is not only constitutionally groundless, but also inconsistent with the basic principles and structure of constitutional adjudication under the current Constitution. Article 111(1)1 of the Constitution of the Republic of Korea provides that the courts and the Constitutional Court share jurisdiction over the constitutional review of laws. In other words, the Constitutional Court may not conduct a constitutional review without the request of the court. The provision also demonstrates a constitutional decision to authorize only the court, rather than ordinary citizens, to request for constitutional review of laws. Nevertheless, the Constitutional Court Act: (a) allows a party to directly file a petition for constitutional review, notwithstanding the court’s decision to the contrary, which is constitutionally groundless; and (b) allows the Constitutional Court to adjudicate on the constitutionality of a law, notwithstanding the court’s dismissal of a party’s motion on grounds of a lack of any constitutional doubts about the law in question. In short, the current complaint system is contrary to the basic principles of the constitutional review authority as laid out in the Constitution. Some cite Article 111(1)5 of the Constitution as the constitutional grounds for the said system. However, the provision may not be interpreted to allow for the establishment of a new system grounded in laws but not in the Constitution, deviating from the inherent content of the constitutional petition regime. The legislative intent of the provision rather lies in the constitutional decision to empower the legislature with legislative discretion to restrict the scope of constitutional petition. Were we to consider Article 111(1)5 as the constitutional grounds for a constitutional complaint system, Article 68(2) of the Constitutional Court Act would be in violation of the provision on the mode of decision-making under Article 113(1) of the Constitution. Were constitutional complaint to be subsumed in the inherent nature of the constitutional petition system, then there might have been room to establish the system based on laws, albeit not on the Constitution. However, one would be hard pressed to find any grounds to deem that a constitutional complaint system is encompassed by the inherent nature of the constitutional petition system, as implemented in the civilized world from a chronological and comparative legal perspective. Perhaps all these issues may possibly be overlooked, if only the complaint system is implemented in such a positive manner as to ensure fundamental rights of the citizen. It turns out, unfortunately, despite the surging number of petitions for adjudication on constitutional complaint, the instances of unconstitutionality adjudication is in decline, which is a reason for concern over the possible abuse of the system in litigation proceedings. Most of the parties who file the constitutional petition do so for the purpose of securing a favorable court decision in their pending cases by claiming unconstitutionality of the law that is the basis of an adverse judgment. As such, there are reasons to suspect that the normative control over the laws may be used by litigants in a way unanticipated by the drafters of our Constitution as a litigation ploy to win their cases by leveraging an unconstitutionality adjudication. Such a trend would necessarily give rise to more appeals and disputes, undermine confidence in judicial judgments, and prolong and even perpetuate disputes. Granted, there may be positive aspects to the complaint system in terms of guaranteeing fundamental rights of the citizen. However, the nature of the constitutional petition itself as an exceptional, supplementary, and emergency means of remedy, as well as the unconstitutional elements implicating the complaint system, calls for a restraint in any attempt to further expand or universalize the system. What is rather called for is an effort to remove any unconstitutional elements from the system.