헌법재판소법 제68조 제2항의 ‘당사자’

Abstract

The essence of the Constitutional complaint under Article 68 (2) of the Constitutional Court Act is Constitutional review of statutes upon request. However, unlike the Constitutional review, the Constitutional complaint is initiated by the “petition” of the party to the underlying case, and therefore one who can petition the Constitutional complaint is important. Article 68 (2) of the Constitutional Court Act allows “Party” to petition the Constitutional complaint when the Party’s request to a preliminary question for the Constitutional review is denied, hence the meaning of “Party” is important. The Constitutional Court has not revealed the meaning of “Party” in general and has decided whether the Complainant is party or not by considering the legislative purpose and function of the Constitutional complaint from individual cases. “Party” in the strict sense refers only to the plaintiff and the defendant in the underlying cases. But the “Party” in the above clause should not be interpreted so narrowly. The Constitutional Court held that intervenor(civil procedure), co-litigant(family litigation), administrative agency(defendant and intervenor in administrative litigation), and selector in the underlying case are considered as “Party”. A person who can receive a decision to deny by a preliminary question or a person who can receive or invoke the effect of a decision to deny and receive the effect of a judgement in the underlying case, should be considered as the “Party” who can be complainant to a Constitutional complaint.