헌법재판권에 의한 국가권력 구조 변화: 사법우위와 행정우위 국가 사이에서

This article aims to show the judicial influence on the state that comes about on the basis of adjudications on the constitutionality of statutes. Depending on the type of state structure, ultimate constitutional authority can be exercised by the executive or judiciary. Korea experimented with judicial primacy during the Third Republic (1963-72) and with executive primacy during the period of the Yushin Constitution (1972-87). Subsequently, the primacy of the constitution has been recognized since 1987. In the Third Republic the tendency toward judicial primacy was manifested through ordinary courts' adjudications on the constitutionality of statutes. The Constitution enacted in 1987 ensures extensive judicial oversight of initiatives on the part of the legislature, the executive and judiciary. The trajectory from the judicial primacy of the Third Republic to the constitutional primacy of today has been achieved on the basis of both the nation and the political sphere accepting constitutional rule. Nevertheless, the parameters of the optimal constitutional state have not yet been determined, so it is an ongoing task for us to specify the range of application of the constitution and the authority of constitutional oversight.