프랑스 사후적 위헌심사에 있어서 청구인의 직접청구에 관한 연구 - 2015년 10월 14일 제2015-491호 QPC 판례평석을 중심으로 -

The Conseil d'État and the Cour de cassation in the constitutionality a posteriori has the final authority on the QPC of legality examination. Exceptionally, in accordance with Article 23-7 of the Organic Law n° 2009-1523, it is required to be transferred to the Conseil only if it does not decide whether it is legitimate within a period of three months. However, in this case, there is no specific regulation regarding the transfer mode, the transfer subject, and the transfer timing. The Conseil is recognized as an automatic transfer through a court office or a direct referral by a petitioner. In QPC case n° 2015-491, the Conseil added a new requirement that the petitioner, in addition to the deadline for the direct referral, as well as the existence of the ongoing trial. This interpretation is directly contradictory to Article R. 771-17 based on the code of administrative Court and Article 23-9 of the Organic Law n° 2009-1523. It also contradicts the legislative intent of Article 23-7, Paragraph 1, stipulated as a means to reduce the possibility of direct referral by a petitioner. Therefore, it is necessary for the Consil to widely acknowledge the opportunity of direct referral by a petitioner. And more efforts should be made to more clearly define the subjects and requirements for automatic transfer.