관습헌법의 존재와 효력 - ‘신행정수도의 건설을 위한 특별조치법 위헌결정’을 중심으로 -

Abstract

In 2004 the Constitutional Court declared ‘the statute for the construction of a new administration capital’ unconstitutional. In this decision there were two opposing opinions on the ‘existence’ and ‘force and effect’ of the customary constitutional law. There are two main issues. The first issue is whether the capital Seoul belongs to the customary constitutional law as constitutional norm fact. The second issue is whether the ‘capital Seoul’ customary constitutional law has the same ‘force and effect' as the written constitutional law, when the ‘capital Seoul’ is recognized as the customary constitutional law. This decision has some important jurisprudential themata about ‘relation of fact and norm(Sein und Sollen)’ and ‘practice and recognition in the customary (constitutional) law’. I regard the customary (constitutional) law as a strong candidate that can connect between fact(Sein) and norm(Sollen). Whether the ‘capital Seoul’ is recognized as SeinSollen or as Sein-Sollen fallacy depends on the existence of the ‘capital Seoul’ customary constitutional law. Two opposing opinions are arguing on this issue. I find it difficult to recognize the ‘capital Seoul customary constitutional law’. The ‘capital Seoul customary constitutional law’ don't have two requisites for customary law, ‘practice and recognition’. The major opinion explained it with ‘determination of people’ about substantial items of constitutional law. Besides I find it difficult to recognize ‘capital Seoul’ as practice. It is hard to find the repeated actions, a sense of duty and the burden of breaking in ‘capital Seoul’. It is rather desired that the major opinion develops the argument with an unwritten constitutional law. It has the normative power of the fact. I think that an unwritten constitutional law has the complementary effect under the system of a written constitutional law. The recognition of an unwritten constitutional law is not universal enough for a certain. Under those conditions it is hard to accept the best validity of an unwritten constitution in the system of a written constitutional law.