헌법소원심판에서 사실인정과 증거조사업무의 문제점과 개선방안

Among constitutional complaint cases, there may be more cases in which accurate facts need to be confirmed than in an adjudication on the unconstitutionality of the law, especially in constitutional petitions that are subject to the exercise of administrative power. Problems related to the recognition of facts in these cases are as follows. First, the Constitutional Court Act requires a constitutional petition trial to be conducted in a written hearing in principle, just like an unconstitutional law trial, and to be heard only when necessary, but in practice, few arguments are held. Second, in constitutional petition trials where the confirmation of major facts is important, there are insufficient regulations to secure effective evidence data through the method of examining evidence to confirm facts. Third, even in matters where the determination of the main facts is important, it is not clear by what evidence the main facts were recognized in the decision of the Constitutional Court. Fourth, It is not clear which party is responsible for objective proof. In order to correct these problems, it is necessary to improve the types of cases that can be argued exceptionally and the deficiencies of provisions related to evidence investigation. In addition, it is necessary to indicate the evidence that was the basis for the recognition of facts in the judgment. Lastly, regarding the issue of objective proof responsibility, the Constitutional Court should be considered that the respondent is basically responsible for proving that the exercise of public power was exercised in accordance with the basic rights provisions of the Constitution.