위헌적인 행정적 유권해석의 통제방안에 관한 연구

Abstract

The government has adopted a governmental right interpretation under Presidential Decree on the basis of the government organizing law for unified law enforcement. Such government interpretation serves as a strong norm that has a significant impact on people even though it is not legally binding in any ways. However, if the government interpretation is unconstitutional, the methodology controlling the interpretation is considered to be problematic. Since the government interpretation does not include any provision justifying its effect, it does not constitute a “administrative disposition, etc.” under the Administrative Procedure Act and therefore cannot be subject to an appeal suit. Also, government interpretation cannot be subject to a constitutional petition because it does not constitute an infringement of basic rights or an exercise of public power. In this system, the only way to challenge the government interpretation would be that one disobeys the government interpretation, resulting in the government’s law enforcement, and files a suit against the enforcement to let the court interpret the government interpretation as constitutional. Such measure demandspeople to act “without trust in the government” and supposes that people file lawsuits against the enforcement of the unconstitutional government interpretation. Thus, not only does it call for excessive sacrifice of certain people, but it can also lead to public distrust against the government’s law enforcement. In addition, the enforcement of statutes standing on the government’s unconstitutional interpretation may continue for a considerable period of time. Therefore, it is necessary to preemptively establish administrative binding to the government’s interpretation and specify the principles of constitutional interpretation of the law. If there has been already a case that includes unconstitutional government interpretation, an administrative procedure rule that allows to fight it posthumously would be needed. In addition, research is needed to resolve the violation of basic rights in a legislative manner under the current law by noting the minority opinion that, in the case of unconstitutional government interpretation, the violation of basic rights can be exceptionally subject to the petition. [