헌법소원심판에서 적극적 이행 가처분에 관한 고찰

The debate on whether an injunction is allowed in the constitutional appeal has already been firmly established permissible in constitutional lawsuit practice. So the above discussion is no longer meaningful; it is important to clarify whether the injunction for suspension of effect, widely used in constitutional trials, is one of the injunction for determining the temporary status derived from the Civil Execution Act or the result of applying the suspension of execution stipulated in the Administrative Litigation Act as mutatis mutandis. Thus, in a constitutional appeal, an injunction is not generally accepted; it can be confirmed that the permissibility of the injunction is an issue that needs to be re-examined in consideration of the characteristics of the relevant laws and measures. As a result, in the constitutional procedure, it is difficult to allow an Active Implementation Injunction because it goes beyond the possible scope of the main decision on the merits. However, the question of whether the limitation of such an injunction can be solved through the legislative theory on the constitutional procedure remains to be a task in the future; the relationship between legislative theories on the introduction of a lawsuit for performance of obligation and injunction under the Administrative Litigation Act should be fully considered.