신행정수도후속대책특별법의 위헌성 여부에 관한 연구

Abstract

The capital relocation legislation enacted with a simple majority vote by the National Assembly in January 2004 was declared as unconstitutional by the Constitutional Court in October 2004 on the ground of its having violated the unwritten(“customary constitutional law”) part on the nation's capital of the Constitution which required an amendment to relocate capital as interpreted by the Court. Another, albeit a little down sized, capital relocation legislation(called Special Act for the Construction of Administrative Complex Town as Follow-Up Measures for Capital Relocation) was enacted equally with a simple majority vote by the National Assembly in March 2005 only in the space of three or four months following the decision of the Constitutional Court in which the first capital relocation legislation was held unconstitutional. The second legislation retains almost all the provisions of the first legislation intact with few changes including President and 6 designated ministries being exempted from relocation and with addition of a few supplementary provisions. Upon constitutional complaint, this second legislation was also put to constitutional scrutiny by the Constitutional Court recently. A study is conducted on the constitutionality of the second legislation. As a result, an argument is made here to suggest that the second legislation is also unconstitutional on the following four grounds. Firstly, the second legislation in its contents is substantially identical to the first legislation that was held unconstitutional in that it purports to relocate the substance of capital to the particularly designated area that was already ascertained as the site for new capital under the first legislation. Consequently, the second legislation amounts to an action of evasion to what is made null and void by the Constitutional Court, unless it is found to be substantially varied from the first legislation. Secondly, the second legislation also defeats the binding effect of the Constitutional Court's decision on all the state organs including the National Assembly as well as citizens (Constitutional Act Article 47 Section 1), unless it is substantially different from the first legislation or unless there exist justifiable grounds for legislating a substantially identical matter. No justifiable grounds such as changed circumstances are found for the second legislation following the first legislation. Thirdly, the second legislation lacks social scientific rationality to justify itself. Jurisprudentially, rationality grounds work through the mechanism of Constitution Article 37 Section 2 which provides for variables to constitutionally justify a statute or statutory provision that restricts constitutional rights or freedoms such as balancing test and others. A statute or statutory provision found irrational cannot be constitutionally justified, particularly when it restricts constitutional rights and freedoms of the citizens. No social scientific rational grounds can be found for relocation of capital to a particular locality(Yonki-Konju area) at this point of Korean historical, political, economic and social developments. Capital relocation at this point of time is in fact vastly irrational, particularly in consideration of the national division, future national unification, pending nuclear issues involving North Korea, further economic developments, and others. Especially relocation of capital, whether the entire capital envisioned in the first legislation or “administrative complex town” involving the substantial part of capital in the second one, to a particularly designated locality has nothing to do with the legislatively avowed purpose of “balanced developments” in the statute or will have minimal effects toward the legislative purpose if there are, except for the political effects of wooing voters' mind in that particular locality for the governmental candidates at the next national elections. Fourthly, the second legislation violated legislative due process constitutionally required of even in any legislation, particularly because it is an extremely important piece of legislation involving capital relocation. Most of all, it is a hastily enacted legislation for a short period of time spent, having skipped a number of important legislative processes such as the procedure designed for enlisting wide-ranging public opinions and hearings at the judiciary committee of the National Assembly. Such a hastily and imprudently enacted legislation cannot withstand the constitutional scrutiny in terms of constitutionally commanded legislative due process.