법원의 명령·규칙에 대한 사법심사

Under the Constitution of Korea, the Consitutional Court is as an independent judicial body like any other court. Article 107 of the Constitution provides so-called dualistic structure of norm control. Specifically, the consitutional court is endowed with the power of normative control of higher norms such as general legal acts while the Supreme court has the power to make a final review of constitutionality or legality of lower norms, like administrative decrees, regulations or actions. It is clear that the court, vested the authority of interpreting trial norms, has the power to review legality of higher norms which control those trial norms as Article 101 states ‘Judicial Power shall be vested in courts.’ Considering content of Article 101 and purpose of enacting subparagraph 2 of Article 107, this is confirmative, declarative and supplementary compared to subparagraph 1 of Article 107 that provides grounds for establishing the constitutional court. In addition, the phrase, ‘legality or constitutionality is at issue in a trial’, provides prerequisites for constitutional review rather than preliminary consideration. In general, courts exercise its power to control norms by reviewing legality or constitutionality of a decree or regulation and explaining reasoning in its decision when legality is at issue in a trial. In practice, however, when reviewing legality or constitutionality of decree or regulation is the object of trial at the administrative court, courts often incline to dismissing cases, meanwhile, the constitutional court allows constitutional appeal of cases where decrees or regulations infringe the fundamental rights of people, on grounds that there are no specific means to seek remedies from the court. In result, when legality or constitutionality of decree or regulation is a principal matter of a trial, constitutional petition replaces for trials at ordinary courts. In fact, the nature of the constitutional petition itself is an exceptional, supplementary, and emergency means of remedy so that there are limits for the constitutional court with single trial system to find truth or to provide relief of rights which courts do. And after all, the practice of norm control of the constitutional court, reviewing legality or constitutionality of decree or regulation violates the provision of the Constitution stating “The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.” To deal with issues over constitutional petition on decree or regulation, some suggested to introduce constitutional appeal litigation by amending the Administrative law. What is desirable to address the issue is to allow appeal litigation on administrative decree or regulation to administrative court, on certain conditions, for example, where administrative decree or regulation directly infringes on the fundamental rights of people and so on.