시민불복종과 헌법소송의 관련성

Abstract

The main purpose of this article is to examine the relations between civil disobedience and performance of a constitutional suit. Civil disobedience appears as a last resort when legal means are exhausted against the serious wrong in the law or the policy of the government. Since civil disobedience is the last resort, then the question arises whether it can be carried out first without attempting to sue the constitution, a legal remedy procedure within the system. I‘ll answer this question by reviewing the meaning of a last resort, The reason why civil disobedience performs a constitutional lawsuit is to actually abolish or change unjust laws or policies. However, not all cases of civil disobedience can be dealt with by constitutional litigation. In this regard, how the possibility of constitutional litigation is related with the law or the policy under attack is discussed. If the law or the policy in question is declared unconstitutional by the constitutional court, the act of disobedience is justified. Then the question is whether the justified act of protest can no longer remain in the category of civil disobedience, which has illegality as an essential conceptual element. This raises the question of whether the logic of ‘post-legal justification by constitutional trial’ can be accepted for civil disobedience, and the argument is presented from a positive standpoint. If the constitutional court ruled that the law or the policy under attack is constitutional, the original conduct is denied the legitimacy. Then will civil disobedience now have no choice but to give up its protest? Or is there still room for continuing protest to be regarded as civil disobedience? On this, the article will support the latter view and give its rationale. Lasty, the civil disobedient's attitude toward the law and willingness to accept punishment and then the state's reaction to civil disobedience is discussed.