사법제도 개혁을 위한 헌법 구조적 대안 연구 ― 헌법재판소법 개정을 통한 재판소원제도 도입론 ―

In South Korea, so-called judicial power abuse incidents and many retrials have occurred, there are needs for a constitutional structural alternative to resolve the violations of human rights in these cases. It is called judicial reform. In the case of judicial abuses, the courts is proceeding with criminal justice proceedings for the abuse of judicial power against senior judges, including the head of the judiciary. And in the past, the retrial cases and the Commission for resolving past history to improve them have been reviewed by human rights infringement judgments in the past. More fundamental solution than this, the change on structure of judicial systems is necessary for safeguard human rights. Therefore, if a court trial violates human rights, a structural solution should be drawn up to allow the Constitutional Court to examine “Constitutional Complaints on the judgments of the ordinary courts”. Then, checks and balances can be realized between Supreme Court and Constitutional Court. This paper researches the judicial structural flaws raised since the enactment of the Constitution in 1987. And I analyse repeated judicial unbelief cases and retrial cases and review Constitutional Court Act Paragraph 1 of Article 68, “Any person who claims that human right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power, except the judgments of the ordinary courts, may file a constitutional complaint to the Constitutional Court”. Then I propose an amendment to delete “except the judgments of the ordinary courts” from the Act. In Germany, Constitutional Complaints about Court cases has already received positive reviews as a representative application of the Constitutional Court system. In Korea, a constitutional structural reform of judicial action by the amendment of the Constitutional Court Act should be necessary to recognize the constitutional complaints of judical cases. Through this, (1) if the court's trial applied an unconstitutional law, or (2) misinterpreted the impact of the fundamental right, the constitutional court should review the tribunal by a constitutional complaint. And (3) the constitutional court should review (3) a trial that adopts evidence obtained by violating human rights. (4) In cases where the court's delay in unfair trials, the constitutional court review whether the trail is a violation of fundamental rights. And furthermore, (5) I analyze whether the Constitutional Court could thrown out the cases and return the case to the court or Constitutional Court can make a decision the court's trial by itself. I hope to contribute to the strengthening of the guarantee of fundamental rights. This study will help to realize the structural reform of the judiciary. It is hoped to strengthening the security of fundamental rights such as delaying trials, infringement of fundamental rights, and institutional faults concerning the distribution of jurisdiction in the Constitutional Court and the Supreme Court.