개성공단 전면중단조치 위헌확인 헌법소원 사건 평석

Constitutional litigation is the last bastion of basic legal rights. While serving as the most powerful legal means to increase legal effectiveness and realize a constitutional state in substance, constitutional litigation is the final trial level under the positive law that examines the constitutionality of state actions. The complete shutdown of the Kaesung Industrial Complex (“KIC”) is an important event where the standard for the constitutionality of state actions is reviewed. This paper reviews the decision in a constitutional petition filed with respect to the suspension of operation at the KIC. For the review, the decision of the Constitutional Court was summarized based on media reports. Subsequently, the review focused on three key issues as follows: first, whether the shutdown at issue was an emergency measure to address a financial or economic crisis; second, whether the shutdown at issue was an adjustment measure and in compliance with the due process requirements; and third, matters concerning the principle of trust protection. The author conducted a critical review of the Constitutional Court’s decision, focusing on these three key issues. With respect to the shutdown at issue, the Constitutional Court ruled that where the President’s judgment on an issue relating to North Korea is justifiable, the competent administrative agency’s decision on procedural matters should be respected. However, this view is taking a step backward from the principle of due process that the Constitutional Court has established as a precedent. In the area of national security, it is difficult to expect a situation where “the President’s judgment on procedural matters is clearly unreasonable.” Consequently, the court’s decision in this case has become a precedent that any judgment of the President is presumed to be constitutional. Given the fact that the decision in this case was adopted by unanimous consent of the constitutional court judges, similar decisions are likely to be rendered going forward unless the composition of constitutional judges is changed drastically. In order to attract investments in the course of resuming the operation of the KIC and recommencing inter-Korean economic cooperation, it is necessary to take a legislative approach to stipulate by law the standards and procedures for suspending projects and providing compensation for such a situation.