헌법개정논의에 있어서 “헌법재판소 구성”과 “헌법재판관 선임”의 문제

Abstract

As the final organization in charge of constitutional interpretation,the Constitutional Court's judgment has a powerful influence. It gives the direction for other governmental institutions and organizes the rules of law in state. Because of this, the Constitutional Court should be independent of other governmental institutions' control. And this depends on the composition of the constitutional justice. The composition of the constitutional justice has to be based on three principles, which are independence, specialty and democratic legitimacy. There are two ways to realize these principles. One is the method in which the Constitutional Court is composed of, such as the qualification, term and numbers of the constitutional justices. The other is the way in which they are appointed. Paragraph 2, Article 111 of the present Constitution demands a constitutional justice to hold the qualification of a judge. This is very narrow, considering the fact that constitutional justices have to use deep knowledge of law and philosophy of law to solve constitutional problems. Accordingly, justice qualification needs to include law professors. Regarding the justice term, justices are presently elected to a six-year term and can serve consecutive terms(paragraph 1, Article 112 of the Constitution). But a six-year term is relatively short to train the specialty of constitutional justice. Moreover, allowing consecutive term could be dangerous in maintaining the independence. Therefore, in case of the amendment of the Constitution, constitutional justices should hold 9-year office and be prohibited to serve consecutive terms. And one-third of the justices, that is three justices,shall be renewed every 3 years in turn. This will help to keep its consistency of constitution interpretation. If considerable numbers of justices are changed at the same time, it can cause disorder in running the Constitutional Court. Our ruling system divides the power of the state into the Legislative,the Administration, and the Judicature and the Constitutional Court equally. In line with this, each third of constitutional justices(3justices) are appointed by the President, the National Assembly and the Chief Justice of the Supreme Court(paragraph 3, Article 111 of the Constitution), accordingly. In this system, it is a critical problem that three justices are nominated by the Chief Justice of the Supreme Court who has weak democratic legitimacy. To improve this defect, in case of the amendment of the Constitution, all justices should be elected by the National Assembly. Constitutional Court's judgment has become very important for the whole state, and hence, we must make efforts to improve its defects. But these problems are not just solved by only amending the Constitution. It also needs a mature sense of nationhood. And in this process, constitutional justices should cooperate with the people and all governmental organs, and this will create respect for the Constitutional Court's judgment.