악법성을 지닌 헌법규정의 제도적 해소방안

If we find a constitutional provision which contains a unconstitutional intention or content, it is clear and easy way for us to revise the provisions through the constitutional amendment procedure. Yet, we could not have amended this kind of provisions since 1987 when present constitution established. I think, first of all, it is because of very difficult amending procedure(two-third majority is needed to pass the Assembly). None of political party has gained this level of majority in Assembly since current constitution was established. I In Korea, a soldier can not demand state tort liability even when he had his body injured in the middle of rescuing civilians who suffered disasters like flood or earthquake because of his boss's absurd mistake or misjudgement. The constitution § 29 ② denied the soldier, policeman etc having the right of state tort liability. They only can receive compensation money. They are outside of rule of law because their statue is special. The Korean Supreme Court in 1971 declared this regulation which had enacted by the Assembly unconstitutional and refused to apply it to the case. The court had the right of reviewing the enactment and refusing to apply it into a case under the constitution at that time. After this decision had not dried yet, the president made a brand new constitution which included this regulation in the level of constitution not in the enactment(1972 constitution so called 4th Republic). I think this provision is bad law and unconstitutional(against supreme and basic rights: equality before the law and human dignity of §10, 11 of the constitution). 1987 Constitution(current constitution) has yet this provision even though having two-times revision chances. The constitutional court has narrowed down the scope of this provision in many cases since 1987. In my opinion, the court have the right to ask president and Assembly(formal actor who have the initiative to submit the amending proposals) to revise the regulation to defend the Constitution. Some scholars including foreign countries suggest that supreme court(American style) or constitutional court(Continental style) have the right to nullify the constitutional clauses which conflict with identity of constitution or basic principle of constitution in absence of the clear jurisdiction on it in the constitution. I think the Korean Constitution § 10, 11: human dignity and equality before the law which have come from the natural law are the basic principle of Korean constitution. According to §111 of the constitution, the constitutional court have the right of interpretation of the constitution to resolve the constitutional disputes. So the court can reach the knowing that a constitutional provision conflicts with basic principle of the constitution. Someone say that only if the eternal clauses that the founder of the constitution beforehand stipulated as the core part of the constitution not being changed by next generation has existed, and the constitution has the amending procedure, the court possibly has the right to check the substantial unconstitutionality or formal (procedural) unconstitutionality. Nevertheless, the court does not have the right to review the regulation of constitution only by the help of eternal clauses and amending clauses. These clauses do not provide the court with the reviewing power without any clear jurisdiction. These power belongs to supreme power: sovereign power which the people has. The court has the interpretation right of constitution by the grant of constitution to settle the constitutional disputes. So the court only possibly has the right to review and refuse to apply(supreme court) or nullify(constitutional court) the provision of constitution by the clear grant of such a power in the constitution. If the court go farther over the line of boundary he/she will encounter the unexperienced situation which he/she can not calm down in peace especially in the short history of constitutional adjudication without any jurisdiction(of nullifying constitutional regulation) in the constitution. Therefore, the court only has the right to demand the president or Assembly to start the amending procedure on the basis of his/her own interpretation of constitution. If they refuse to apply the demand unreasonably and without any due consideration, the people who unduly has affected by the unconstitutional provision in the constitution are able to file a constitutional appeal(Verfassungsbeschwerde) against their omission toward the constitutional court.