법원의 재판을 대상으로 한 권한쟁의심판

Potential conflicts that would arise between adjudication on competence dispute and judgment of the courts have been a difficult problem. They have been addressed in many constitutional law literatures for a long time. This paper attempts to show that this problem could be solved still more systematically if we assume that judgment of the courts be the object to adjudication on competence dispute. Constitutional Court Act prohibits judgment of the courts from being contested with constitutional complaint, but that is not the case in adjudication on competence dispute. Considering that ordinary courts can be a respondent, and judgment of the courts falls under a disposition that should be the object to that adjudication, this paper is in a position that judgment of the courts infringing on other agencies’ competence can be contested with adjudication on competence dispute. The main content of the first half of this paper is to examine theoretical possibilities that judgment of the courts be the object to adjudication on competence dispute, and to review some objections, that the provision prohibiting constitutional complaint on judgment of the courts should also be applied to adjudication on competence dispute, that the negative and reactive characteristics of judgment of the courts should be deeply considered, and that non-existence of the provision prohibiting adjudication on competence dispute on judgment of the courts should be viewed as a legislative fault. We come to an conclusion that they all have their logical weakness. In the second half, based on these reviews, I attempt to solve the abovementioned potential conflicts. If a conflict could be viewed to occur between ordinary court and relevant agencies, there would be room for making use of adjudication on the competence dispute, where the court being treated as the respondent, judgement as the subject matter thereof.