규범통제의 본질에 비추어 본 대법원과 헌법재판소의 역할

Abstract

One of the most important elements to ensure the objectivity and fairness of law is the uniformity of the legal order. When the law contains contradictory provisions or the application of law to the same subject-matter is inconsistent, the creditability on the objectivity and fairness of the law will be greatly impaired. That is why the uniformity of legal application during the judicial procedure is greatly emphasized. Even if the independence of a judge and a court is important in consideration, it cannot take precedence to the uniformity of judgement because it remains only as the means to secure the fairness of the judgement. By making available use of the Instance system of court, review of a higher tribunal on the lower court and securing the consistency and order(system) of all judgements by the supreme court can be understood under the same context. The necessity of controlling the norm may be comprehended in the perspective of the uniformity of legal application. If the norms which have different meanings co-exist and the criteria of its' application leads to confusion, it is unavoidable that one should have a system to control the lower norm by the criterion of higher norm because it is difficult to guarantee the objectivity and fairness of the legal application. The relationship between the supreme court and the constitutional court under such context is mired in confusion with controlling the norm. Although they are of equal standing in the independence of respective powers, the conflicts between these two authorities on the issues of “Adjudication on the constitutionality of statutes” and “Review on the constitutionality or legality of administrative decrees or regulations” cannot be justified. The most important thing is to realize the ideology of the law rightfully, which enables the guarantee and ensuring of the human rights of the people to the maximum. To make this possible, both the court and the constitutional court should make all possible efforts to achieve the uniformity of the legal order. The differences in opinion could exist regarding what is right in each individual cases as they may be different due to opposing principles of legal doctrines, the judgement may be changed and the legislation may differ respectively in every state. However, the applicable law to “here and now” should at least be uniform that the material “rule of law” can be realized with the cooperation of the court and the constitutional court.