헌법 제72조 국민투표에 관한 연구 ― 「형사소송법」, 「검찰청법」 개정을 계기로 ―

Revising the Criminal Procedure Act, which significantly curtails the authority of the prosecution to investigate, debates heated up over holding referendum on prosecution reform bill. According to Article 72 of the Constitution, the subject of referendum must be “important policy”, not the “act” itself. Thus, whether prosecution reform is subject to referendum should be reviewed in the perspective of criminal policy. However, regardless of whether it is the subject of referendum, it is uncertain that referendum could be hold since constitutional court ruled that Article 14 (1) of the Referendum Act is incompatible with the Constitution. Although, following the nonconformity decision, congress must amend the concerned clause until December 31, 2015, it has not revised which makes calling a referendum highly controversial. In general, when the National Assembly neglect to enact, filing a constitutional petition or lawsuit against the state for compensation is feasible legal measures. Yet, in this case, such measures could not be practiced because no right to participate in a referendum has been infringed as the president has not submitted a national referendum. For a similar reason, requesting compensation from the state is unlikely to be ruled in favor since it is difficult to recognize damage. Nevertheless, the Government could request an adjudication on competence dispute to the Constitutional Court. Through the ruling over the National Assembly’s neglect of revising Article 14 (1) of the Referendum Act, it is anticipated to expedite enactment which will define of which agenda is submitted for referendum.