법령소원의 요건에 관한 연구 - 직접성 요건을 중심으로

Abstract

In the context of a general Constitutional claim, whether the action at issue is an exercise of governmental power is the first question to be examined at the stage of justiciability determination. Once past the stage, the next question presented is whether the infringement on fundamental rights has self-relevance and present nature. The final question to be examined is whether the issue has complementarity (subsidiarität) in relation to appellate litigation. By contrast, in a Constitutional claim on a statute, the exercise of governmental power is presumed inasmuch as the given law is found to be a statute. Complementarity is not an issue either, as there is no other way to dispute the statute. Furthermore, such requirements as self-relevance and present nature are most often substantively subsumed in directiveness requirement. In this sense, directiveness is an essential element, and a significant determinant of the decision-making structure, in a Constitutional claim on a statute. Even as it requires directiveness in a Constitutional claim on a statute, the Constitutional Court of the Republic of Korea carved out an exception in recognizing a Constitutional claim on a statute itself even when there is an enforcement action, in the following circumstances: (a) the content of the statutory norm has already altered the citizen’s rights relationship prior to the enforcement action; (b) the executive organ is without any discretion; and (c) disputing the enforcement action is merely a way to compel an unnecessary, indirect procedure. However, it is not enough to acknowledge the exception to directiveness requirement where: (a) the content of the statutory norm directly alters the citizen’s rights relationship or decisively determines the citizen’s legal status prior to the enforcement action, so as to confirm the citizen’s rights relationship to such a degree as to be unalterable by either the existence or the content of an enforcement action; or (b) the statute has such unitary and evident meaning as to compel the executive organ to undertake a certain enforcement action under the statute, without any leeway in examination or discretion. On top of this, it is reasonable to view at least that, only when the effective protection of fundamental rights and other rights cannot be expected in a dispute against an enforcement action ex post, may directiveness be found as an exception (the urgency requirement). Such an interpretation would be consistent with the current Korean judicial system and public law litigation framework.