항고소송과 헌법소원의 관계 - 보충성원칙과 명령규칙에 대한 심사권을 중심으로

초록

Under the Korean legal framework, Constitutional petition and appellate litigation is distinguished by the principle of Subsidiarität (subsidiarity/complementarity). However, the relationship between Constitutional petition and appellate litigation has been at the center of attention of the public law academia in the sense that the Subsidiarität principle of Constitutional petition is not a concept or mechanism originally meant for distinguishing between Constitutional petition and appellate litigation. This article seeks for the direction of a sound understanding of the principle of Subsidiarität as provided under the current legal framework by: (a) giving an overview of appellate litigation and Constitutional petition; (b) reviewing the concept and necessity of the principle of Subsidiarität of Constitutional petition from theoretical and historical perspectives; and (c) conducting a comparative analysis of that principle vis-a-vis the positive laws of Korea. In addition, this article explores ways to establish an optimal relationship between appellate litigation and Constitutional petition by reviewing the issue of the adjudicatory rights over orders and rules, one of the most fiercely contested issues of late, on Constitutional grounds and from a multi-faceted perspective. The appellate litigation system ought to be shaped and evaluated by taking account of its appropriate relationship with the Constitutional petition system. Setting appellate litigation on an appropriate footing with the Constitutional petition system should be not only unilaterally emphasized from the viewpoint of Constitutional interpretation, but also pursued by thoroughly conducting a comparative review of the strengths and weaknesses of each institution, building on a comprehensive consideration of both the intra-institutional factors such as the manner of examination and procedure, standard of review, and the tier of trial instanceand the extra-institutional factorssuch as the citizensʼs access to court. This is because any excessive reliance on Constitutional interpretation in an area with room for debate over the meaning of Constitutional provisions, or any attempt to leap from the essence of Constitutional petition to conclusion, might pose a risk of chilling the legislator's discretion in formulating legal institutions, thereby constraining the democratic principle as a community decision-making principle.

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