헌법재판권의 행사 기관에 관한 소고

The constitutional adjudication is a mechanism to protect our constitution upon the premise of supreme normative character of constitution in that it maintains and protects our constitutional order and guarantee our basic fundamental human rights. The constitutional adjudication is not only the procedures to settle disputes over constitution by having the constitution as judgment standard but also the institutional framework to exercise a regulatory power by binding the exercise of all of government powers to constitution. Therefore, it can be said that the constitutional adjudication is the action of securing the normative force upon constitution as well as recognizing the constitution to solve our constitutional disputes. * Ph.D. in Law, Professional Researcher at Institute for Legal Studies. As far as the constitutional adjudication is concerned, we can say the supreme norm of constitution as a constitutional theoretical ground, and the principle of constitutional superiority as a governing principle of constitution. As it cannot be acquired only with the formal logic that the constitution is the supreme law in a country, the constitutional superiority needs the institutional mechanism which materially controls the unconstitutional state action and get rid of it. This is the constitutional adjudication. The constitutional adjudication binds all the government powers to constitution, embodying the constitutional superiority over all the government powers including the power of legislation. It is not easy to logically draw a definite line between the constitutional adjudication and the ordinary trial as they share the same nature of how justice system is working. It means that it is not clear to differentiate between the constitutional adjudication and the ordinary trial as well as it is just a judgment in terms of constitutional policies. However, there can be the standard of prima facie in the separation from constitutional adjudication and ordinary trial. At least, the parties involved in the dispute should be the ones who participate directly in the life of constitution, and the interpretation and application of constitution should be the critical problems. By means of distinct characteristics of the constitutional adjudication that recognizes, interprets and applies the constitution, it is reasonable for an institution of constitutional court independent of the ordinary courts, in other words, a constitutional court to be in charge of the constitutional adjudication. And the power of constitutional adjudication belonging to the courts means that the authority over power control may not be neutral. Therefore, when it is independent of the courts, it can rightfully have control over not only the national assembly and the government but also the courts. As a result, it is necessary to establish the constitutional court that holds the exclusive constitutional adjudication binding all the state power to the constitution in order to improve the independence of the institution as well as enhance its professionalism.