헌법재판의 가처분 소고(小考)

Abstract

Provisional remedies in constitutional litigation are a decision that may be issued by the Constitutional Court prior to deliberating on the merits of a case in order to ensure the ability of the Court to render a meaningful decision on the merits and to preserve the legal status and rights of the concerned parties on a temporary basis, designed to secure and protect the interests of the parties. Provisional remedy has its constitutional basis in the principle of the rule of law, which requires that there be an efficient judicial remedy for violation of rights, while its statutory basis lies in the provisions on provisional remedies in civil proceedings(Article 300 and following articles of the Civil Execution Act) and those in administrative proceedings(Articles 23 and 24 of the Administrative Litigation Act) that apply mutatis mutandis in constitutional cases by way of Article 40 of the Constitutional Court Act, as well as in Articles 57 and 65 of the Constitutional Court Act. The Court should consider if there is an urgent need to prevent significant and irreparable harm to determine whether the balance of equities favors granting a provisional remedy. Such a determination is guided by the principle of Doppelhypothese, under which the Court weighs the hardships that would be incurred if a motion for the provisional remedy was denied but the case affirmed afterwards, against the outcomes to be followed if the provisional remedy was granted but the case rejected. Public interests that would be served or injured by the grant of a provisional remedy, private gains and losses of related parties and other circumstances should be considered. The rule which says that provisional remedies should not as such anticipate the judgment on the merits of the case is therefore only relatively valid. An opportunity should be allowed for a respondent to file an objection against the ruling granting a provisional remedy in view of enhancing the procedural participation of the concerned parties in constitutional proceedings. The contents of provisional remedies may vary with different adjudication procedures. The Court may issue a preliminary injunction, which would suspend the effect, execution or the continuation of procedure of a disposition against which a motion has been filed. Further, other measures may also be granted for creating a temporary status or suspending the effect of statutes. It is necessary to establish thicker legal regulations for provisional remedies in constitutional litigation so that the causes, procedures and contents of such remedies are to be clearly articulated.