유신헌법 제53조와 긴급조치의 위헌심사에 대한 검토- 헌재 2010헌바70･132･170 결정과 대법원 2010도5986 판결을 중심으로 -

Abstract

In the Republic of Korea, there was a Self-cou of military authority and the president who had done the Cou, made so called “Yushin Constitution” in 1972. The regime of the Yushin Constitution was unlawful and unconstitutional both in the process of amendment and in the contents of the Constitution. Because it has been proved that there were many provisions which abridged fundamental human rights and violated the principle of rule of law. Especially Art. 53 of Yushin Constitution gave the president special, unlimited and super-constitutional authorities of urgent measures. Under the regime, there were many victims of unlawful judgement, who were judged guilty in violation of urgent measures which were based on and combined with Art. 53 of Yushin Constitution. Until the decision of Supreme Court of 2010(2010Do5986), unlawful judgements had been effective and general courts and Constitutional Court had negative tendency in the retrials and constitutional appeals in such cases. At last in 2010, the Supreme Court made monumental decision(2010Do5986). The court said that it had the power to review on the urgent measures because the measures were in the status under parliamentary legislation, and the urgent measure was unconstitutional, so that the applicant of retrial should be sentenced to not gulity. After that decision, in 2013, Constitutional Court said that the Constitutional Court had the authority to review urgent measures taken under the Yushin Constitution because the measures were in the same stage of parliamentary legislation or even over that. And then the court decided that the urgent measures were unconstitutional on the basis of current Constitution(2010Hun-Ba70･132･170). Actually, based on the substantial effect, Urgent measures seemed to have effect as the same level of legislation or even as the Constitution. In my opinion, the Constitutional Court, the political judiciary which has the ultimate right to interpret Constitution, should have the jurisdiction not only on the review of unconstitutionality of urgent measures but also Art. 53 of Yushin Constitution, the provision of unconstitutional Constitution. However, the Constitutional Court deferred their decision on the provision of Yushin Constitution. The Constitutional Court should have decided unconstitutionality of the Art. 53 of Yushin Constitution to fulfill its responsibility of defending constitutionality and protecting fundamental human rights.