한국의 민주화에 있어서 헌법재판소와 권력 통제 -1988년부터 1998년까지-

Abstract

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.