헌법재판소 결정의 정치적 의미
The Implications of the Constitutional Court Decisions in the Political Process -Particularly with a Focus on the Recent Election-Law-Related Decisions-

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서울대학교 법학연구소
법학, Vol.42 No3 pp.1-27
정당공천의 효력정지가처분 결정공직선거및선거부정방지법사법권의 독립위헌법률심사제도
The recent election-law-related decisions of the Constitutional Court in 2001, along a Branch Court of Seoul District Court's decision temporarily suspending the validity of a political party's nomination of a candidate for the National Assembly last year, make us reappreciate the functions of the Constitutional Court and the meanings of its decisions in the democratic political process. The Constitution provides specifically for the Constitutional Court separate from the Supreme Court and for its functions including that of judicial review of legislative actions, unlike the American Constitution. The Constitutional Court is so organized to conduct the following constitutionally provided functions of ① judicial review of legislation when the outcome of an ordinary court's decision-making depends on the constitutionality of the legislation; ② impeachment trial; ③ dissolution trial of a political party when the party's goals and activities violate “the basic democratic order”; ④ resolution of jurisdictional disputes between governmental organs; and ⑤ resolution of constitutional complaints(Verfassungsbeschwerde) filed by a citizen. The absolute majority of the Constitutional Court's work loads are, however, composed of ① and ⑤ kinds of cases whereas any ② or ③ case is non-existent in practice and only a small number of ④ cases ever filed. Theoretically the compatibility of judicial review of legislation with the principle of democratic majority rule is debated in Korea as well, albeit with much less intensity. The justification arguments for judicial review has been voiced far stronger, however, in terms of its functions of “protection of the constitution” including those of its contribution to democracy, particularly to democracy of the majority rule and the protection of minority with the principles of separation of power and check and balance. The justification arguments are much augmented by the very active, successful performances from its inception of the Constitutional Court in fulfilling its judicial review of legislation function, particularly compared with those of the Japanese institution of judicial review. Korea is one of the few success stories in which both political democratization and market economy have been achieved since the Second World War. Political democracy in Korea has been successful more at the macro, institutional level, however. Democratic practices are lagging behind at the micro, behavioral level. Thus, judicial intervention in political process including judicial review is significant in terms of its contribution to behavioral level democracy as well. The constitutionally envisioned in-party democracy was a powerful one of the judicially announced rationales for the branch district court's temporary injunction in party nomination case and the Constitutional Court's ruling of unconstitutionality on the National Assembly's national district case where the constitutional validity of party boss-made lists for the national district who are made national assembly members on the basis of the result of election in electoral districts alone without a second vote for party was questioned.
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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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