미국 의회거부권 법리의 한국에의 적용가능성 시론

초록

On May 29, 2015, Korean National Assembly passed a revision bill of the National Assembly Act, allowing the legislature to demand the executive to amend certain kinds of administrative legislation, such as presidential decrees. The revision bill stirred a controversy over its constitutionality. On June 25, the President evetually vetoed it. This incident aroused Korean’s interest in the U.S. legislative veto doctrine. In Chadha case the House of Representatives vetoed Attorney General’s suspension of Chadha’s deportation. The U.S. Supreme Court held that the legislative veto was unconstitutional. The Court’s reasoning was as follows: (1) Presentment Clause and Bicameralism Clause specifically stated by the Constitution for legislative action must be strictly observed in the enactment of law. (2) The action of the House of Representatives was legislative in nature because it modified rights and duties of individuals outside the legislative branch. (3) The legislative veto in the case violated the Presentment Clause because it was not presented to and review by the President. (4) The legislative veto in the case violated the Bicameralism Clause because it was exercised solely by the House of Representatives. The legal doctrines construed in Chadha are not to be directly applied to Korean circumstances. The conclusion of the majority opinion that the legislative veto is unconstitutional itself is of little help. When reading the case, one must consider the difference between Korea and the U.S. in understanding separation of powers doctrine. From the perspective of Korean public law scholar, the action of the House of Representatives might be executive rather than legislative, forming an oversight of law enforcement. As Chadha decision held that the presentment process was intended by the Framers to provide a mechanism by which the executive branch could defend itself against legislative encroachment, it would be unconstitutional for Korean legislature to enact new rules by demanding the executive to amend administrative legislation. If the holding that the power to enact laws must be exercised by both chambers of the Congress as expressly stated by the Constitution are to be applied to Korean situation, the power to require the amendment of certain executive agency rules should not be exercised by a standing committee but the general meeting of the National Assembly.

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