국회의 시행령수정ㆍ변경요구(청)권의 위헌여부

초록

On May 29, 2015, the National Assembly passed a vote of the revised National Assembly Act bill's Article 98-2(3), according to which, the Standing Committees shall regularly open the committees or sub-committees, and have them examine the Presidential Decrees, the Ordinances of the Prime Minister, the Ordinances of the Ministries which have been submitted by the competent central administrative agencies with respect to whether they are in contravention to the Acts, and where deemed that the relevant Presidential Decrees, etc. are not in accordance with the purport and content of the Acts, they may treat a request the heads of the competent central administrative agencies to amend and change the Ordinances, and also in this case, the head of the central administrative agency shall handle the requested matters and report the results to the Standing Committees. However, the President Park, Geun-Hye vetoed the revised National Assembly Act bill, insisting that the bill was unconstitutional. So that the National Assembly reconsidered the bill on the table, but it was likely to abolish the bill, due to the nonparticipation of the ruling party in the vote. With this case, legal experts are divided over whether the bill is unconstitutional or not, so that I would make my opinion. Firstly, according to the article 40 of Constitution, the legislative power shall be vested in the National Assembly. Moreover, so called the administrative rule making power, in the article 75 and 95 of Constitution, is not original, but subordinate to the legislative power. Secondly, the president may issue the presidential ordinances within the concrete fixed scope of delegation and for the function of the law execution. Therefore, the administrative rule making power must be exercised concerning matters delegated to it by the National Assembly Act. Thirdly, if the Administration should issue the administrative ordinances beyond the concrete delegated scopes, the ordinances could be controlled by the system of judicial review of the Supreme Court and the Adjudication on Constitutional Complaint of the Constitutional Court. And also, the National Assembly could control the ordinances by itself. Fourthly, the authority of the National Assembly for controlling the administrative decrees could come from the right of the National Assembly to control the Administration, and the authority also could be justified by the right of the National Assembly to delegate the legislative power to the administration according to the article 75 of Constitution. Fifthly, when the fundamental right of the people could be extensively violated or infringed by the administrative ordinances, which depart from the scope of parliamentary delegation, the National Assembly may control the delegated ordinances as a “Abstract Review on Norm”, so that it does not violate the Supreme Court's or the Constitutional Court’s powers to review the administrative decree, because the control of the National Assembly is independent from the control of the judicial branch, which may control the decrees, only if it’s constitutionality or the legitimacy is challenged in the concrete cases (“Concrete Review on Norm”). Therefore, the Argument of Unconstitutionality in this point doesn't have any legal basis. Sixthly, it could be possible that the National Assembly could get back the delegation and control the administrative ordinances, which depart from the scope of parliamentary delegation. In addition, the standing committee could be authorized to control the delegated administrative ordinances by the National Assembly. The German Bundestag has the right to agree, revise, reject and abolish the delegated administrative ordinances. Furthermore, not only the Federal Constitutional Court of Germany decided that this control system was constitutional, but also the majority of scholars approved the constitutionality of this control system. Finally, from the article 75 of the Constitution, it is necessary to take the parliamentary control system to the administrative ordinance for the protection of fundamental rights of the people. Therefore, the various reservation system of the participation for making administrative ordinances, as it is in Germany, should be introduced in Korea.

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