구체적 규범통제사건의 심사방식에 관한 소고 - 당해사건 고려 및 재판전제성 인정범위 문제를 중심으로 -

The Constitutional Court of Korea(hereinafter referred to as “the Court”) has the jurisdiction over concrete norm control. That procedures are composed of a constitutional review of statutes requested by ordinary courts and a constitutional complaint under para. 2 of Art. 68 of the Constitutional Court Act(hereinafter “a complaint under §68-2”). There are two contradicting necessities in these concrete review proceedings. On the one hand, the Court should make judgments upon the minimized scope of laws, the constitutionality of which is a prior question in its original case. On the other hand, for a decision of unconstitutionality nullifies statues and has an erga omnes binding force, the Court is faced with the necessity to examine the constitutionality of legislation in its entirety independent of its original case, i.e. from all constitutional points of view. This paper aims at exploring various ways to take original case into consideration while the Court scrutinizes the constitutional validity of legislation from all constitutional points of view. Provisions on review should be reduced to the most essential part being at issue at the underlying trial. For that, the Court should establish strict standards for clarifying the subject of review and checking whether preconditions of a trial are fulfilled. In addition the Court’s decision should be expressed in a way to be of help in dealing with its original case. Decisions of limited constitutionality or unconstitutionality to the constitution can be made efficient use of here. Making decisions of nonconformity with an order granting temporary application or prohibiting application, the Court could be allowed to offer its original case special and different treatments. The purpose of a constitutional review of statutes requested by ordinary courts puts relatively greater weight on keeping judgments and the entire legal order constitutional. To the contrary a complaint under §68-2 is an institutional device for a petitioner to be given a chance to win his trial with the decision of unconstitutionality. On this account, if a petitioner can’t win his trial with that decision, precondition of a trial does not seem to be fulfilled. For example, in those cases, where a decision of unconstitutionality has an effect only on reasons for the judgment in its original case or only on interlocutory judgment without changing any final judgment, precondition of a trial doesn’t be considered to be met.