입법형성의 자유와 입법재량의 남용 - 입법사실확인(legislative fact-finding)에 대한 심사를 중심으로 -

Abstract

At a glance, it is a little unclear that Constitutional Court of Korea has reviewed legislative fact-finding though it has operated adjudication on jurisdiction disputes dealing with a procedural flaw in a legislative process. However, considering an extreme battle field in our politics where lots of people paradoxically expect a good and effective law, the meaning of legislative fact-finding could be more important in the near future. This article mainly attempts to identify what is the most appropriate way for the judiciary branch to assess legislators’ ability to conduct legislative fact-finding for a legislation. By assessing the completeness of the legislator’s fact-finding, judging the actual legitimacy of the law at issue in a specific case is often found in the U.S. Supreme Court cases. Thus, I firstly take note of legislative fact-finding while focusing on the interaction between the Congress and the Judiciary in the U.S.. There was controversy within the Supreme Court about who should take the initiative in verifying legislative facts and the deference to the Congress has been prevailing in the U.S. for some time. However, since the 1990s, the deference to the Congress has declined. Recently, the initiative in verifying legislative facts is taken by the Judiciary rather than the Congress. We also can find out that either Constitutional Court of Korea implemented to verify legislative facts on its own or it assessed the legislator’s fact-finding among the past decisions. In other words, it is not impossible that we can expect the initiative in verifying legislative facts is taken by the Constitutional Court of Korea. In addition, an attention to legislative fact-finding may lead to the practical acceptance of the so-called, wide-ranging legislative process review, which is not currently officially introduced by the Constitutional Court of Korea. Last but not least, assessing legislators’ ability to conduct legislative fact-finding for a legislation can contribute to the specific determination of a limit on legislative discretion as a sort of quantitative formula.