유신헌법상의 긴급조치에 대한 사법적 과거사 청산에 관한 소고 -대법원과 헌법재판소의 관련 판례에 대한 평가를 중심으로-

The Yushin Constitution, which was promulgated and enforced on December 27, 1972, for the permanent power of the president, did not have a control mechanism for the president’s right to take emergency measures, so the fundamental rights of the people were liberated and violated. Emergency measures were issued up to No. 9 and were mainly used as a means of oppression against students, opposition lawmakers, and opposition politicians against the Yushin system. In the past, almost without exception, decisions that ruled that emergency measures based on the Yushin Constitution were constitutional or not subject to judicial review were discarded. At the same time, the fact that emergency measures are unconstitutional because they violate the fundamental rights of the people is highly appreciated in that they have controlled the exercise of unconstitutional public power in the past as well as guaranteeing the fundamental rights of the people. The Supreme Court and the Constitutional Court can evaluate that they have a much higher status as fundamental rights guarantees than in the past through unconstitutional judgments that occurred amid pure functional competition for the purpose of guaranteeing fundamental rights and relief of rights. In addition, it can be evaluated that these judicial institutions are also well equipped as constitutional protective institutions that guarantee the normative effect of the Constitution through a constitutional adjudication on emergency measures that violate the Constitution. In particular, considering that Article 53 (4) of the Yushin Constitution stipulates that judicial review is excluded from emergency measures, the precedent declaring unconstitutionality can be of great significance. In addition, it can be said that it is very impressive to recognize state compensation for emergency measures. If damage has occurred to the people due to infringement of fundamental rights due to emergency measures, bearing the national liability for compensation can be a way to properly fulfill the obligation to guarantee fundamental rights as a state, even if it is belated. Fortunately, the Supreme Court ruled that the State bears responsibility under Article 2, Paragraph 1 of the National Compensation Act for damages suffered by the victims of emergency measures being arrested, detained, investigated for violating unconstitutional or invalid emergency measures No. 9. Through this, it can be evaluated that the judicial liquidation of the past for emergency measures has been realized even a little.