정책결정에 대한 헌법적 통제의 의미, 범위 및 한계

Abstract

The purpose of this article is to examine the relationship between politics and constitution. To analyze the issues logically, it is necessary to scrutinize the establishment and amendment of constitution through political activities, the criteria of political process by constitution and the control over the political process against the constitutional rules. The focus of this article is on the third phase. To understand the constitutional control over the policy decision exactly, it is necessary to examine the basic premises of policy decision in the light of “Constitutional States”. On the one hand, the policy decision by delegates is justified and its prior conditions are identified through the embodiment of democracy. On the other hand, the possibilities and means of pursuing the responsibilities for policy decision is examined in the light of liability-procurement for righteousness in democracy.『The Relationship between Politics and Constitution』 and 『The Constitutional Control over the Policy Decision』 can be understood within the system of realizing the democracy. Also, the constitutional control over the policy decision can be arranged into three phases. First, the meaning of separation of powers can be identified as the basis of constitutional control over the policy decision. Second, we can recognize the control mechanism among state organizations in the basis of separation of powers. Third, if “Checks and Balances” fails to work throughout the control mechanism, then people can directly control the state organizations. We should not overlook at the fact that the structure of realizing the democracy is changing and developing incessantly. At present, however, the constitutional control over policy decision is performed through cross-check(checks and balances) system among three branches of government and, if this system fails, people can control the government directly by exercising their fundamental rights. Nevertheless, we can still confirm that we should take a prudent attitude toward the recall-system.