행정법규의 헌법합치적 법률해석

Abstract

Constitution-conforming interpretation refers to a principle of statutory interpretation in which provisions of a law shall be construed in conformity with the constitution if the wording of the law is ambiguous and thus may be construed as either unconstitutional or constitutional. The constitution-conforming interpretation has been developed for a long time in connection with the constitution, legal theories, and theories of public law, and its legitimacy is based on the constitutional superiority and the uniformity of the legal order within the scope of constitutional interpretation. Although the Supreme Court expressly adopted the principle of constitution-conforming interpretation earlier, the constitutionconfirming interpretation of statutes has been mainly applied to civil and criminal cases, rather than administrative cases. In terms of the administrative law, it is viewed that there has been no noticeable case in which statutory provisions are construed directly based on the principle of constitution-confirming interpretation. Recently, in connection with the recovery and additional collection of fraudulent subsidies, various disputes have occurred and the legal precedents rendered by the Supreme Court have been on the increase. In such a circumstance, as the majority opinion in the Supreme Court’s full bench decision no. 2014Du12697 rendered on February 21, 2019, the Supreme Court held that the scope of additional collection for fraudulent subsidies of direct rice income compensation shall be limited to the amount of the subsidies fraudulently received, rather than the total amount of direct rice income compensation received, based on the constitution-conforming interpretation. The demands by the courts for constitution-conforming interpretation are growing, but on the other hand, it is necessary to guard against the abuse of constitutionconfronting interpretation in light of the separation of powers. In this regard, the aforementioned ruling can be viewed as the beginning of discussions on roles and limit of the constitutional-confronting interpretation in interpreting the administrative laws and regulations. Firstly, this paper tries to clarify the meaning of the constitution-conforming interpretation by reviewing the significance of the constitution-conforming interpretation applicable to statutory provisions, inter alia, the administrative laws and regulations, and further, by examining its relationship with the concept of constitution-orienting interpretation. Then, this paper also examines the specific ways of normative control through the constitution-conforming interpretation, the relationship between the constitution-conforming interpretation and the normative control of the Constitutional Court, and the limitation of the constitution-conforming interpretation. On the basis of the foregoing, the structure and meaning of arguments that lead to the conclusion of the majority opinion and the minority opinion subject to the relevant ruling are examined in a perspective of the constitution-conforming interpretation.