사적 행위가 개재된 기본권 침해를 다루는 비전형적 헌법소원

Constitutional Complaint under Constitutional Court Act Article 68-1(‘Article 68-1 Complaint’), the primary role of which is the relief for the violations of constitutional rights, is the core of the Constitutional litigation system to protect constitutional rights. Anyone whose constitutional rights has been infringed by an exercise or non-exercise of the governmental power can file an Article 68-1 Complaint. The Article does not apply to private action, although private persons, as holders of constitutional rights, can also be potential invaders of basic interests protected by constitutional rights, that is to say life, liberty, or property. The government restricts various freedoms by regulation or support by involving in relationships between private parties. In some cases, the responsibility for the infringement of constitutional rights can be imputed to the government even if private conduct is the direct cause of the infringement and the government is only indirectly involved. The purpose of this article is to find a standard for establishing the scope of cases where an Article 68-1 Complaint can be filed against the governmental exercise - such as administrative actions or laws - for the cause of infringement of constitutional rights regardless of whether or not a private party bears civil or criminal liability for violation of basic interests. If the government fails to fulfill its obligations to protect constitutional rights, non-exercise or insufficient exercise of governmental power may be subject to the Article 68-1 Complaint. However, this article focuses on - with emphasis on defensive rights - what forms of governmental intervention can be subject to Article 68-1 Complaint. There must be a causal relationship between the exercise of public power and the violation of basic interests and such causality can be recognized if the government can control the consequences of limiting B’s basic interests through governmental intervention and private person A’s action. The purpose, attitudes and methods of intervention of the government are the main factors to be considered and the nature of the relevant area or task should also be taken into account. Even if public authority merely permitted A’s conduct, the permission can become lawful subject matter of review, if public tasks are closely related. However, not all kinds of governmental interventions are subject to Article 68-1 Complaint and it is not always clear that in what cases can the responsibility for the infringement of constitutional rights be imputed to the government. The Constitutional Court is required to develop standards and methodology for the classification of untypical cases in order to assure constitutional rights.