헌법소원에서 소권남용의 의미와 처리 방안 ― 기각 및 각하 결정의 근거를 중심으로 ―

The term “right to sue” or “right to trial” refers to the right of an individual to file a lawsuit in court to seek a judgment. “Abusing the right to sue” refers to exercising this right for purposes that do not align with the authentic purpose of the litigation system. This concept includes not only cases that are undoubtedly malicious but also cases where there is no practical benefit to filing. A significant number of constitutional complaint cases fall under the category of vexatious litigation which constitutes abuse of the right. Although constitutional complaints are related to fundamental rights, there remains the need to deter vexatious litigations because abuse of litigation rights inherently violates principles of good faith and can prevent other citizens from promptly enjoying their rights to trial. If a claim is deemed abusive, it can be dismissed through a preliminary proceeding of a 3-judge court, on the ground that the claim lacks the legitimate interest for protection required for full consideration. If a request for the appointment of a public defender constitutes an abuse of the right, a question arises as to whether the exception articulated in Article 70, Paragraph 3 of the Constitutional Court Act refers only to cases where the constitutional complaint the applicant will be filing is abusive or also includes instances where the request itself constitutes an abuse. This article contends that it is still possible to dismiss such abusive requests for their lack of legitimate interest, regardless of the interpretation of Article 70.