시행령 통치의 실효적 견제를 위한추상적 규범통제 필요성 검토

Administrative legislation has a limited meaning that complements the principle of administration by the law. The limitation becomes clearer when we look at the text of Article 75 of the Constitution, which states that “the delegated matters and the matters necessary for enforcement”. The problem is that administrative legislation that goes beyond the limits is used as a means of governance. “Executive order Politics” refers to the phenomenon of regulating administrative objects to be governed by law as executive order. Executive order politics, which disables legislative power, undermines the basic principles of the constitution that sustains the community. In other words, the Executive order country which is governed by the Executive order, destroys the principle of the democratic state by undermining the principle of the rule of law and incapacitating the legislative power by putting the executive order, not the legislation of the National Assembly, in the upper hand. In addition, the Executive order Politics is rather privileged, creating a contradiction that it is an extension of the unconstitutional situation. Therefore, the demand for effective control over the Executive order Politics is urgent. The direct control method of the National Assembly on the executive order (Article 98-2 of the National Assembly Act) does not recognize the request for amendment or change, and its improvement depends solely on the goodwill of the executive power. In the case of the court, the delay of the control is inevitable as long as the current constitution takes concrete riview(Article 107 Clause 2 of the Constitution). In the case of the constitutional appeal against the Executive order Politics, it is evaluated as the most effective control method, but it has the imperfection of control due to the subjective circumstances of the individual. The limitations of existing methods inevitably lead to the discussion of abstract review, which can be defined as a constitutional trial that examines whether the established norm violates the upper norm, regardless of specific events and individual subjective motivations. In the case of abstract reveiw in Germany, the existence of a “Difference in opinion” or a “Question” about whether the lower law violates the upper law is a claim requirement. In particular, the fact that more than a quarter of the members of the federal parliament are recognized as claimants is significant in terms of the prerequisite of democracy, which is a minority protection. However, we have empirically expressed “Differences of opinion” or “Question” about norms at each stage of legal life. Our Constitution lags behind this fact by defining only concrete review. Therefore, our Constitution cannot protect itself until concrete review is made from the executive order politics that disables the legislation of the National Assembly, It does not conform to the characteristics of the Constitution's self-guarantee, highest norm, and power-limiting norm. Therefore, the need for the Constitution to define abstract review is sufficient in view of the incompleteness of the existing control method and the request at each stage of legal life, as well as the Constitution itself defends the basic principles of the Constitution attacked by the Executive order Politics.