국회의원의 사직에 관한 몇 가지 문제

Abstract

§135 ① of (Korean) National Assembly Act provides as “The National Assembly may permit by resolution a resignation of an assemblyman: Provided, That when the National Assembly is in recess, the Speaker may permit it.”. But (Korean) Constitution does not have corresponding or similar provision. Instead, Constitution provides clauses about review of the member’s qualification, disciplinary actions against its members, expulsion of its member and the power of establishing of the rules of its proceedings and internal regulations. This sort of Constitutional vacuum raises unconstitutionality problem about §135 ① of National Assembly Act, as a member’s resignation brings about automatic loss of its position under the Constitution’s viewpoint. In the course of discussing this problem, the writer examines the possible connection between review of the member’s qualification, disciplinary actions against its members, expulsion of its member and the possibility whether §135 ① of (Korean) National Assembly Act can be treated as rules of its proceedings and internal regulations. But writer reaches the following conclusion: “the character of permission by the National Assembly corresponds acceptance under administrative law terminologies.” Another point treated in this article is how to draw the decision of unconstitutionality against §135 ① of National Assembly Act as the main clause of §47 ② of Constitutional Court Act declares “Any law or provisions thereof decided as unconstitutional shall lose its effect from the day on which the decision is made.” The Constitutional Court’s adjudication of 2009hunma510 announced on September 29, 2009 denied ‘self-relevancy’ between applicant and presumed unconstitutional law and dismissed applicant’s request of constitutional complaint. The applicant based his causes on the right to hold public office. If the resigned member loses his position without National Assembly’s permission, he can run for special election carried out by §200 of Public Official Election Act. The writer points in this article that adjudication does not harmonize with its precedents, but under the ruling of the adjudication, he presents the possible alternative ways such as supplementary intervention or raising constitutional complaint by the ‘self-relevancy’ holding applicant based on the deficiency of quorum.