헌법재판소의 포괄위임금지원칙 심사기준에 관한 고찰

Abstract

In the Korean Constiutional Court, the Non-blanket-delegation principle is animportant constiutional principle that is often used. In the review of the Non￾blanket-delegation principle, it is examined whether delegation is posible in terms of theform of delegation. Whether it is posible to delegate to executive order other than thepresidential order in the law, whether it is posible to re-delegate the maters delegatedby the law, whether the law can be delegated to the articles of asociation, whether thelaw can be delegated to administrative rules, whether the penal code can be delegated. The Korean Constiutional Court considers the subject of predictabilty as ‘everyone’in its Non-blanket-delegation principle. However, in the Non-blanket-delegationprinciple, the subject of predictabilty must be the administrative agency, the ‘receiptauthority’. In aditon, the Korean Constiutional Court insists on judging whether or notthere is predictabilty of delegation, and not only judging by the specifc provisions, butalso by organicaly and systematicaly synthesizing al relevant provisions. However, theorganic and systematic comprehensive judgment on the provisions of the law is something that the Constiutional Court should closely consider and review, and it is no posible to make a comprehensive judgment that is ‘everyone’ profesional and dificult. The Korean Constiutional Court finds that even in cases where the Non￾blanket-delegation principle does not aply, the statute reservation principle must beobserved. The Non-blanket-delegation principle and the statute reservation principle isnot a relationship betwen general and special principles, but both principles as paraleland independent screning standards. Since the Korean Constiutional Court is concernedwith the relationship betwen the Non-blanket-delegation principle and the principle ofdefinitenes, the Non-blanket-delegation principle is the principle of definitenes of thedelegated law that delegates legislation to the executive, so the principle of definitenesis the general principle and the Non-blanket-delegation principle is reported as thespecial principle. However, the Non-blanket-delegation principle is a principle forcontroling the enactment of laws and ordinances by an administrative authority, whilethe principle of definitenes is a principle for preventing discriminatory or arbitrary lawinterpretation and law enforcement by law enforcement oficials. Therefore, theNon-blanket-delegation principle and the principle of definitenes serve as the criteria forreviewing independent constiutional appeals.