위헌결정 법률의 제안자 분석 및 개선방안

Since the Constitutional Court was established, a lot of laws have been ruled unconstitutional. This paper analyzed which of the proposed legislations, those by the government or those by the Members of the National Assembly, were ruled unconstitutional. In aggregate, government-submitted legislations had a higher rate of unconstitutionality than legislations proposed by the Members of the National Assembly. Since the 18th National Assembly, however, the number of unconstitutional rulings on legislations proposed by Members of the National Assembly have increased compared to those on government-submitted legislations. If an unconstitutional law is implemented, the people’s fundamental rights, among other merits, may be violated. Hence, efforts should be made to improve the constitutionality of the proposals from the government and the Members of the National Assembly. The Ministry of Government Legislation should conduct a stricter and more accurate review of the unconstitutionality of the government-submitted proposals. The National Assembly has no committee to review the unconstitutionality of proposals. However, if a Member of the National Assembly asks the Legislative Council Office of the National Assembly to draft a bill, it is necessary to establish a measure, such as mandating the Legislative Council Office to review the unconstitutionality of the bill, to improve the constitutionality of proposals. The National Assembly should thoroughly review the unconstitutionality of the proposed legislations during the Committee in which the legislation was proposed as well as the Legislation and Judiciary Committee to ensure that any legislation that is unconstitutional is not passed. Efforts are also needed to improve constitutional expertise of the participants involved in drafting of laws, such as the government officials and congressional aides. The government and the Members of the National Assembly should prevent the ratification of unconstitutional bills. Furthermore, the National Assembly should exercise efforts to protect the fundamental rights of the people by preventing any unconstitutional laws from ratification during the review process.