헌법소원의 직접성 요건- 헌법재판소 판례의 변천을 중심으로 -

The directness requirement in the Constitutional Complaint is a unique lawful requirement that is conceptually different from the requirement of exhaustion of other remedies. However, it is responsible for the distribution of judicial powers between the Constitutional Court and the general courts, and as a result it is in charge of functions similar to the requirement of exhaustion of other remedies in the Constitutional Complaint. In principle, the Constitutional Court shall deny the directness of the laws and regulations when the subordinate norms are scheduled to be implemented for the purpose of realizing the regulations. However, in certain cases, such as whether the system itself stipulated by the authorization clause is unconstitutional, the directness of the authorization clause is recognized in exceptional cases. The Constitutional Court has relatively broadly recognized the exception of the directness requirement because the directness of the laws and regulations is exceptionally allowed if the executive action is a binding act where there is no room for discretion. However, in recent years, the Constitutional Court has pointed out that, the directness of the laws and regulations is recognized only in cases where there is a situation that can not be expected to undergo a remedy even if the laws and regulations provide for a specific executive action to be necessary. The tendency of these recent judgments can be understood as an attempt to unify the exceptional cause of directness in the same way as Germany, by means of the “possibility of expectation”, and to evaluate the fundamental rights of the people more effectively. The Constitutional Court should make a judgment in setting the scope of recognition of directness, keeping in mind the ideals of the people’s rights. However, it is necessary to provide predictable and clear criteria to harmonize the efficiency of the Constitutional Court with the right of the people to be tried.