소멸한 행정처분에 대한 헌법소원 ― 단순법률문제 이론의 맹점과 개선방안 ―

The Constitutional Court sets the requirement of ‘necessity for constitutional clarification’ as an exception for the mootness doctrine. However, it denies this necessity when the issue merely involves ‘interpretation and application of ordinary or statutory law.’ This approach borrows from the German judicial theory that the Constitutional Court only examines issues unique to the constitution. The German theory aims to define the extent to which the German Constitutional Court could intervene in other courts. Considering the principle of subsidiarity, this theory essentially delineates the scope of the Constitutional Court's intervention in judicial actions, thus defining the admissibility of constitutional complaints. This premise assumes that actions subject to judicial review are in place. However, the Korean Constitutional Court, without such consideration, applies this theory as a litigation requirement, leading to dismissal decisions on the legality of actual administrative actions (Realakte) that could fall outside the purview of judicial review, creating a potential judicial vacuum. This judicial vacuum manifests in two dimensions: firstly, the judicial relief against right-infringing administrative actions is obstructed, and secondly, there is a potential for conflicting judgments between the Constitutional Court and ordinary courts. The former raises constitutional concerns regarding the scope of judicial relief against administrative actions, while the latter exposes an institutional loophole. These aspects underscore the necessity to revise this theory. Currently, the theory fails to meet the demand for providing an opportunity for rebuking administrative actions, and the ambiguity in the scope of jurisdiction as perceived by judicial bodies undermines predictability for citizens. This paper suggests that it is desirable to reassess the types of cases dismissed as mere ordinary or statutory law issues from the perspective of subsidiarity.