법률의 헌법소원 대상성에 관한 관견

Whether an ‘Act’ can be the object of a constitutional complaint based on Art.68 Sec.1 of the Korean Constitutional Court Act (hereinafter a “Sec.1 Complaint”) has almost never been a matter of question, either in the practice of Korean Constitutional Court (hereinafter “KCC”) or in the academic world. The only explanation, explicitly given by KCC, was that legislation is unquestionably included in the ‘exertion of public power’ provided in Art.68 Sec.1. But this apparent ‘dogma’ doesn’t seem to be compatible with a systematic interpretation of the present KCC Act, the elucidation of which is the purpose of this article. First, the KCC Act contains no provision at all concerning the effect of an Act struck down as a result of the Sec.1 Complaint, which is indispensible should Acts be eligible objects for a Sec.1 Complaint. Second, on a closer look together with Art. 75, the ‘exertion of public power’ provided in Art.68 Sec.1 can only include exertion thereof which is ‘concrete and particular’. Third, even something legislative can be properly included in the exertion above, it is an ‘act of enactment of revision of the Act itself’, not an ‘Act’ itself, which is nothing more than a product of the above act. Fourth, when KCC strikes down Acts in a Sec.1 Complaint, the manner in which KCC constructs the main sentence of its decision is disaccordant with the provision of KCC Act, the reason of which seems to be that KCC cannot abide by the KCC Act and enable Sec.1 Complaint on Acts at the same time. As a matter of interpretation of Sec.68 Art.1, it is at least ‘problematic’ to see Acts as eligible objects of Sec.1 Complaint. The problem must be dealt with, either by a novel theoretical work, or by a revision of the KCC Act.