한국의 민주화에 있어서 헌법재판소와 권력 통제 -1988년부터 1998년까지-
The Democratization of South Korea and Power Control by the Constitutional Court

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서울대학교 법학연구소
법학, Vol.42 No1 pp.61-106
한국의 민주화의 과정헌법재판은 권력통제의 기능권력통제
This article aims at evaluating the degree of Constitutional Court's
contribution in the realization of its power control for the first
decade(1988-1998). It is a serial work to my earlier article, “The Democratization
of South Korea and the Contribution of the Constitutional
Court:1988-1998”(Seoul Law Journal Vol. 40 No. 3), where I analysed how
much the Court contributed in the realization of people's constitutional rights
for the same period. It is important to review how sufficiently the Court
controled each subdivision of the powers: the legislative power, military
power, National Information Agency, public prosecution, presidential actions,
administrative actions, judiciary, local autonomy in public power control.
In judicial review, the Court declared about 150 legislative acts
unconstitutional. In doing so, the Court reviewed the process of legislation,
reduced the range of military secrets. Most characteristically, the Court
reviewed the constitutionality of the nolle prosequi decisions of the
prosecution. The Court declared 63 decisions unconstitutional for the
infringement of the constitutional rights. It might seem unnatural for the Court
to control the non-prosecutorial power through the constitutional litigation
process. However the Court can efficiently controls the non-prosecutorial
power through the constitutional litigation process. Of course, this kind of
control is exceptional. The Court also reviewed the Presidential actions and
administrative decisions. Normally these kinds of action are controlled by the
ordinary court with administrative litigation process.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 42, Number 1/4 (2001)
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