헌법재판에서 가처분의 허용성과 그 요건에 관한 관견(管見)

Unlike the legislative and executive power which creatively form the national agenda and function, for Constitutional litigation that controls government power by interpreting and applying constitution and thereby is responsible for protecting constitutional order and guaranteeing basic rights, it emphasizes Provisional remedy to ensure the effectiveness of the judgement of the present case in the Constitutional Court and to protect disputed legal relationships and rights. The provisional remedy in the constitutional litigation is based on the request for effective procedure of relief of rights. But, the Constitutional Court Act has individual disposable provisions(article 57. article 65) just only for political party dissolution trials and power dispute trials, it does not have individual provision disposition for the concept of general terms that all Constitutional trial procedures normally applies. The Constitutional Court Act only standardizes the Constitution trials’ own procedures considering generality of civil suit and specificity of Constitutional trials on jurisdiction procedure, but for other procedures, it covers procedural deficiency by embracing other regulations of other legal procedure law s such as the civil procedure codes. Therefore, if the Constitutional Court Act does not prohibit provisional remedy explicitly but if there needs provisional remedy under the concept of Constitutional Court trials’ characteristic, provisional remedy can be done in the Constitutional litigation. In the Constitutional litigations, provisional remedy roles interventions and involvements on the other authorities and institutes by putting on the brakes temporarily or amending to state actions such as legislation, administration, and jurisdiction for securing judgement’s actual effectiveness in the future. Thus, provisional remedy’s requirements and restrictions must be strictly set to protect Constitution’s authority and order and to smoothly execute state functions. And provisional remedy has to act exceptionally and only when there needs urgent necessity to prevent critical damage. But regarding of this judgement, it is carried out by double-hypothesis method that measures disadvantage which may occur when trial is rejected after provisional disposition decision is made and disadvantage which may occur when trial is corresponded after provisional disposition is rejected.