헌법재판소와 대법원의 합리적 권한 배분 - 헌법재판소의 뇌물죄 한정위헌결정(2011헌바117)에 대한 비판적 고찰 -

Abstract

On December 27, 2012, The Constitutional Court was limited to unconstitutional that construed as a 'civil servant' of Bribery including a member appointed of Integrated Impact Assessment Committee, Jeju Special Self-Governing Province is in violation of the Constitution. In this decision the Constitutional Court held that the Constitutional Court can do, in principle, only if the limited unconstitutional decision, the limited unconstitutional claim to obtain "to interpret the law ... one, the law is unconstitutional," should be allowed. However, to allow the limited unconstitutional claim by the Constitutional Court Act Article 68, paragraph 2 could result the trial of the petition to prohibit by the Constitutional Court Act Article 68. the first term. The Constitutional Court is not a superior court to examine the validity of the court’s judgement in all the legal point of view. The Constitutional Court controls the trial of court by the trial on the petition, only if the constitutional value such as fundmental rights is infriged. The German Federal Constitutional Court allows the trial on the petition only if the violation of fundamental rights by the trial court. In our case, the petition for the trial of the court is prohibited by the Constitutional Court Act Article 68, paragraph 1. However, if the court rejected the adjudication on constitutionality of statutes, the party may file a constitutional complaint with the Constitutional Court by the Constitutional Court Act Article 68, paragraph 2. Interpreting the Constitutional Court Act Article 68, the Constitutional Court can not review a trial whether constitutional rights violations through the law’s interpretation and application and whether specific constitutional procedural due process rights violations. The basis of the trial whether the unconstitutionality of the law only will be able to review the Constitutional Court. Rarely the Constitutional Court reviews whether the court's analysis of law conform to the Constitutional law is unconstitutional. But the Supreme Court denies the effect of the Constitutonal Court’s decision. When considering the interpretation of the Constitutional Court Act and a conflict between the Constitutional Court and the Supreme Court, the interpretation rights of the law will be distributed as follows. All state agencies to interpret and apply the law shall be embodied according to the Constitution(the law interpretation to consider the basic decisions of Constitutional law). If the interpretation of the law conform to the Constitutional law did not conform to the Constitution, the Supreme Court is the final agency with the authority to remove the unconstitutionality of the interpretation. Because the petition for the court’s trial is prohibited on the Constitutional Court Act Article 68, paragraph 1. However, the law is unconstitutional, despite the suspicion of a violation of the fundamental rights and, if applicable, the Constitutional Court can remove the unconstitutionality of the law on the Constitutional Court Act Article 68 paragraph 2. According to the allocation of these rights, the claim to obtain unconstitutionality for the court’s interpretation of the law conform to the Constitutional law will be illegal on the principle of separation of powers.