헌법소원제도의 공과(功過)- 사법정책적 개선방안을 중심으로 -

Abstract

The constitutional complaints system introduced in the current Constitution for the first time has two functions; protection of constitutional rights and guarantee of constitutional order. Upon them, the constitutional complaints system of Clause 1 Article 68 of the Constitutional Court Law is emphasized on the function of protection of constitutional rights. However, court decisions are excluded from the object of the constitutional complaints. So, the most infringement cases of constitutional rights by the governmental authorities are excluded from the object of the constitutional complaints. This study reveals the merits and demerits of the constitutional complaints system analysing the actual conditions of the system based on the statistics of the Constitutional Court based empirically. This system contributed to the functions of protection of constitutional rights and guarantee of constitutional order to a certain extent, but in fact, this system is operated on a very small scale in protection of constitutional rights. That is, the most of the work of the Constitutional Court is the constitutional complaints cases(approximately 80%), but wining rate of the cases is extremely low(2.99%), and the most cases of the constitutional complaints and the won cases of them were the constitutional complaints lodged against non-prosecution cases. This means that this system does not accomplish the function of protection of constitutional rights well. This study suggests the improvement plan of the constitutional complaints system not in legal interpretative perspective but in judicial policy perspective that it should be considered with overall judicial system improvement plan. Upon various improvement plans of judicial system, I support a plan that the supreme court should be the highest court and the policy making court, and a court of final appeal should be establish in the court of appeals. And I suggest that the constitutional complaints against all the decisions of courts except the supreme court should be recognized. Then conflicts between the supreme court and the Constitutional Court will be able to resolve and the effectiveness of the constitutional complaints system will be improved as a protection system of constitutional rights.