입법절차의 하자를 다투는 헌법소원

Abstract

Justness and legitimacy in legislative proceedings are not only the essential demands for parliamentary democracy but also the elementary requisites for the regulation of basic rights. Given a certain statute enacted without observing indispensable requirements for legislative proceedings (e.g. debates and deliberations with openness, decisions by majority rule), restriction on basic rights under such statute could not be legitimized. Still, there have been some statutes which do not have procedural justness and legitimacy. In this situation, the remedy for the procedural illegitimacy needs not be confined to a certain form of constitutional adjudication as it is related to protecting democracy and basic rights. Can a citizen directly assert that there is a flaw in legislative proceedings by the constitutional complaint? A logic which links a procedural flaw with an infringement on basic right is needed to give a positive answer to this question. This study offers a constructed logic. The important considerations in this paper was to provide the way for citizen to file a constitutional complaint against a statute without procedural legitimacy while not deviating from general principles of constitutional litigation. In summary, the conclusions of this paper are as follows; 1) It will not be justified to exclude the possibility of constitutional complaints on the grounds that constitutional review on the constitutionality of statutes or adjudication of competence disputes are available. 2)The statute at issue should be burdening to the claimer him/ herself. 3) A statute restircting basic rights should be consistent with the Constitution and the constitutional order in terms not only of the contents but also of the process of enactment. 4) Restriction on basic rights under procedurally unconstitutional law should directly be confirmed as infringement on basic rights. 5) The procedural flaw needs to be violative of the Constitution, not merely so of statutory law.