행정입법에 대한 법원의 직접적 통제에 관한 소고(小考) - 실무례 분석과 그 확장방안을 중심으로 -

Abstract

The establishment of an appropriate relationship between appeals and constitutional petitions for orders, regulations, and ordinances is still a major issue in both theory and practice. In this regard, the basic principle or legal doctrine is that the Constitutional Court controls laws made by the National Assembly, and the courts control specific administrative dispositions based on such laws. However, the problem is that the relationship between the Constitutional Court and the courts is still ambiguous regarding the subject of judicial review of administrative legislation located in the middle, and various confusions and confusions are occurring in theory and practice. Therefore, it is now time to establish a clear relationship. Considering that modern complex and diverse administrations widely use various notices, instructions, and regulations as supplementary administrative rules to laws and regulations, as well as enforcement decrees, enforcement regulations, and appendices and dispositional ordinances attached thereto as their main administrative actions, and that the distinction between dispositions and orders, regulations, etc. is becoming ambiguous, it is appropriate for the courts to directly conduct a constitutional and illegal review through appeals, etc. in cases where orders, regulations, etc. directly infringe on rights in order to secure the people’s right to claim a trial and the effectiveness of redress for rights. Accordingly, the current practice of the courts still strictly interpreting the qualification requirements for appeals such as dispositional nature and being reluctant to recognize direct appeals against orders, regulations, etc. must also be reconsidered. In consideration of this criticism, there has been a movement to resolve this issue through a comprehensive revision of the Administrative Litigation Act, but in the current situation where this has been repeatedly frustrated, it is necessary to broadly allow direct appeals against orders, regulations, etc. through precedents, separately from the revision of the law, in cases where orders, regulations, etc. directly infringe on the fundamental rights or legal rights of the people under the Constitution, or where there are special circumstances where it is difficult to expect to wait for or go through procedures to bypass specific enforcement actions even if the orders, regulations, etc. are scheduled to take specific enforcement actions.