헌법소원의 직접성 요건에 관한 고찰 - 예외에 관한 헌법재판소 판례를 중심으로 -

The directness requirement, which is required in the judicial system for judicial review, is a unique lawful requirement that is conceptually different from the requirement of exhaustion of other remedies. However, it is responsible for the distribution of judicial powers between the Constitutional Court and the general courts, and as a result it is in charge of functions similar to the requirement of exhaustion of other remedies in the Constitutional Complaint. The Constitutional Court has relatively broadly recognized the exception of the direct requirement because the directness of laws and regulations is exceptionally allowed if the executive action is a binding act where there is no room for discretion. However, in recent years, the Constitutional Court has pointed out that, the directness of laws and regulations is recognized only in cases where there is a situation that can not be expected to undergo a remedy even if the laws and regulations provide for a specific executive action to be necessary. The tendency of these recent judgments can be understood as an attempt to unify the exceptional cause of directness in the same way as Germany, by means of the “possibility of expectation”, and to evaluate the fundamental rights of the people more effectively. The directness requirement in the Constitutional Complaint is a litigation requirement for effective remedy of fundamental rights of the people and effective allocation of jurisdiction between general courts and constitutional courts in the right relief. Therefore, the Constitutional Court should make a flexible judgment in setting the scope of recognition of directness, keeping in mind the ideals of the people’s rights. However, it is necessary to provide predictable and clear criteria to harmonize the efficiency of the Constitutional Court with the right of the people to be tried.