대통령긴급조치와 위헌선언

Abstract

The main points the writer discusses are as following. The constitutional Court declared several times that the eligible laws for judicial review must be the laws ‘formally enacted’ by the Parliament. The background of the Supreme Court’s reasoning for declaring unconstitutional the presidential emergency measures based on Article 53(4) of the Renovation Constitution lies in the said Constitution’s non-requesting attitude of prior consents or post approvals by the Parliament. But presidential emergency measures in the Renovation Constitution are created basing on the generally discussed nature of the measures: the presidential emergency measures has the same or more effect of laws; the presidential emergency measures does not receive judicial review, as the measures corresponds to political questions requiring high level of discretion. According to the general understanding under the Renovation Constitution, the presidential emergency measures has the same or more effect of laws. So the measures promulgated by the president must have the status of laws even after the abolition of the Renovation Constitution. It is not proper to negate the eligibility of judicial review basing on logics newly devised but unforeseeable at that time. Some arguments can be raised against the writer’s logics: Is it absolutely impossible to review the unconstitutionality of the presidential emergency measures under the prevailing constitution?The writer presents the solution basing on the Article 5 of the Addendum of the prevailing Constitution. The said Article provides ‘Acts, decrees, ordinances, and treaties in force at the time this Constitution enters into force, shall remain valid unless they are contrary to this Constitution’. The Renovation Constitution lost its effect as the Constitution as the subsequently established or amended Constitutions. But whether the effects of the promulgated presidential emergency measures survives the subsequently established or amended Constitutions depends whether the contents of the measures to the subsequently established or amended Constitutions. The Supreme Court can judge its contravention. But conclusively judging power is retained by the Constitutional Court when the judgings different between the Supreme Court and the Constitutional Court.