규범통제 권한분장을 고려한 예외적 재판소원의 허용 범위

The current Constitutional Court Act does not permit constitutional complaints against judicial judgments. However, the Constitutional Court has long recognized an exception, allowing constitutional complaints against judicial judgments that apply a statute whose unconstitutionality has been declared by the Constitutional Court. As part of recent judicial reform discussions, judicial judgments are being reconsidered as potential subjects of constitutional complaints. There is a strong argument that, at the very least, constitutional complaints must be permitted against judgments applying a statute declared unconstitutional in order to guarantee the Constitutional Court's authority to declare unconstitutionality. This line of argument is fundamentally valid. However, the current Constitution allocates the authority to declare unconstitutionality either to the Constitutional Court or the general courts, depending on whether the norm under review is a statute or a subordinate administrative order. Constitutional complaints, if broadly permitted against all judgments applying a statute declared unconstitutional, would undermine the constitutionally designed division of powers in judicial review. Greater attention should be paid to the final authority granted to the courts to review the constitutionality or legality of administrative orders. This constitutional blueprint for controlling statutes and administrative orders is not an arbitrary division of labor; rather, our Founding Fathers were deeply aware of the essential differences between these two kinds of norms, and they attributed the relevant authorities to the institutions best suited within the judicial system. Therefore, this paper explores the optimal scope of the exceptional allowance of constitutional complaints against judicial judgments, specifically focusing on the structure of authority distribution regarding norm control as stipulated by the Constitution. Judicial judgments applying statutes declared unconstitutional should be subject to constitutional complaints in order to guarantee fundamental rights as well as the Constitutional Court’s authority to declare unconstitutionality. On the contrary, judicial judgments applying unconstitutional administrative orders, unless the superior statutes are also unconstitutional, should remain outside the scope of constitutional complaints in order to maintain the constitutional design of the separation of powers between the Supreme Court and the Constitutional Court.