헌법소원심판에서 보충성 원칙에 대한 고찰

Article 68, Paragraph 1 of the Constitutional Court Act stipulates that if any remedial procedure is provided by other statutes, no one may request adjudication on a constitutional complaint without having exhausted all such processes. This is called the principle of subsidiarity of the adjudication on constitutional complaints. The principle of subsidiarity has two meanings in constitutional litigation. First, in an active sense, it means that all possible means of remedy should be used to obtain faithful protection of fundamental rights before requesting adjudication on a constitutional complaint. Second, in a passive sense, in the original sense, constitutional complaint adjudication is a final and supplementary remedy that fills in the blind spots in the existing fundamental rights remedial procedures, so it means that it should not be requested first without going through other remedial procedures. The principle of subsidiarity means that if a violation of fundamental rights occurs due to the exercise or non-exercise of public power, a constitutional complaint can be filed only when remedy for fundamental rights has not been obtained despite having gone through the usual remedial procedures stipulated in other statutes. This is intended to ‘reduce the workload of the Constitutional Court’. According to the Constitutional Court’s decision, “if all remedial procedures under other laws have been exhausted” as stipulated in Article 68, Paragraph 1 of the Constitutional Court Act means if all “legal” remedial procedures stipulated in other laws have been exhausted. However, post-facto and supplementary remedies are legal relief procedures stipulated by law, and the only difference is whether they are pre-facto and post-facto remedies. Post-facto and supplementary remedies are not illegal remedies. Also, the petition system under the criminal law is a preliminary remedial procedure stipulated in the law, and it is difficult to view it as an illegal remedies procedure. Exceptions to the principle of subsidiarity in constitutional petitions include, first, cases where the plaintiff has not gone through the pre-trial procedure due to a legitimate reason that cannot be turned to his disadvantage, and second, cases where there are remedial procedures stipulated in other laws, but there is no possibility of expecting remedy for rights through such remedial procedures, or it is objectively uncertain whether remedial procedures are permitted, making it difficult to expect that such remedial procedures will be used. In this case, you can file a constitutional petition without going through other remedial procedures. The principle of directness is about whether to recognize the right remedy procedure in cases where enforcement actions are stipulated in laws and regulations through the interpretation of the Constitutional Court, and the extent to which laws and regulations are allowed as the subject of constitutional complaints, whereas the principle of subsidiarity is intended to reduce the workload of the Constitutional Court by requiring other remedial procedures in the legal system. If the principle of directness is a matter of ‘interpretation’ in constitutional litigation, the principle of subsidiarity can be said to be a matter of ‘legal system’.