세월호피해지원법령의 헌법적 쟁점 : 재판상화해간주조항 및 이의제기금지조항을 중심으로 - 헌재 2017. 6. 29. 선고 2015헌마654 결정 -

Abstract

The Constitutional Court decided that Article 16 of the Special Acton Damage Relief and Support for the 4ㆍ16 MV Sewol Tragedy, which is the legal fiction provision of the judicial settlement(a provision which imposes the same effect a sjudicial reconciliation on cases in which the applicant consents to the compensation or other relief proposed by the investigation committee), does not infringe on the right of access to the courts. In its decision, the Constitutional Court followed the applicable precedents and, for “out-of-courtmediation,” recalled the significance of the composition and investigation process requisites of the deliberative committee in charge of conflict resolutions, aposition which can be evaluated positively. However, strong reservations arise regarding whether granting the main effects of judicial reconciliation to out-of-court mediation can actually achieve the article’s legislative purpose, which is to swiftly conclude conflicts, and whether it violates the spirit of the Constitution, which is to vest the ultimate authority regarding conflict resolution in the judiciary and to guarantee citizens’ right to trial by a judge. Moreover, the Constitutional Court recognized that the general freedom of action is restricted by the objection prohibition clause(a provision regarding the pledge not to raise any objections via any means regarding the 4ㆍ16 MV Sewol tragedy) in the annexed document No.15 of the Enforcement Decree of the aforementioned Act and determined the infringement thereof. However, a counter argument, which asserts that the decision should have been based on freedom of expression rather than general freedom of action, can be set forth by considering the following: that the core of the “prohibition of any objection” stipulated in the objection prohibition clause indicates forbidding any demand for ascertaining the truth and punishing those responsible, etc. in the MV Sewol tragedy via the means of media, publications, assembly, association, the general and subsidiary characteristics of the general freedom of action, and a rigorouse valuation of its unconstitutionality regarding the restriction of freedom of expression.