재판소원의 범위와 그 한계

Abstract

This article is on the reasonable scope of control of constitutional court over the judgement of the general court. First, the examination of constitutional petition should not be identified as the control of norm. It makes the separation of powers to be considered as the main theme of the power-distribution between legislatives and constitutional court, which has the substantial and different function of state, however, the constitutional petition upon the general court is the problem of the division of work among the same function of jurisdiction. It is the problem of functional law,not the substantial one, as being composed of "the denial of acting as a court of appeal" and "the division of work"The practice of the constitutional court on the constitutional petition over the general court is affected by the functional law as well as the substantial constitution, The effects of fundamental rights on the detailed parts of law make the distinction between special constitution and the statute meaningless or fluid. So the discussion on the scope of examination during constitutional petition is hard to be limited. The substantial constitution still remains as the important guidelines or the leading component of this argument. The constitutional court focuses on the binding force of constitution which can be restated especially as the principal of proportionment and the effects of fundamental rights. This procedure can be called as the "direct control of fundamental rights", however,the "control of legitimacy" is focused on the fact that the statute is established by legislator. The former is performed as the thorough examination by the german constitution article 93 Ⅰ, whereas the latter should be restricted by constitution. So, the scope of examination by constitutional petition on the judgement can be changed(reinforced or restricted) by the necessity of protecting the fundamental rights, the change of its understanding,the character of legal scope on the issue or matter, the special status of the constitutional court and other authorities etc. For these many elements importantly-considered, the necessity of protecting the fundamental rights of people is the most basic issue. The meaning and function of the constitutional petition makes it understood as the important tools for the state powers to be performed as constitutional. So, the separation of powers or the allocation and division of state function cannot be autotelic but should be managed as contributory to the protraction or enlargement of people's fundamental rights.