헌법 제107조 제1ㆍ2항은 추상적 규범통제를 배척하는 의미인가 ― 지방자치법 제107ㆍ172조와의 관계를 중심으로 ― (Does Constitutional Law Article 107(1ㆍ2) mean that abstract review of norm is not permitted - In Focus of its relation with Local Autonomy Act Article 107․172 -)

서지정보

· 발행기관 : 행정법이론실무학회
· 수록지 정보 : 행정법연구 / 28호 / 231 ~ 256페이지
· 저자명 : 이상천

초록

The abstract review of law is not permitted in relationship with the congress due to the damage of democracy. 'The premise of judgement' should be interpreted in relationship with the matter of power separation between Congress and Constitutional Court.
The abstract review against legistlative ordinance among administrative legistlations has nothing to do with the damage of democracy, but it should be conrolled in the aspect of administrative work. Thus 'the premise of judgement' should be interpreted not in relationship between Congress and Constitutional Court, but in relationship of power distribution between the Supreme Court and the Constitutional Court. In the meaning of enbroadening the width of letigation possibility and right saving, the abstract review of norm could be permitted in some aspect, but it has the limits of not being violated against the principle of power balance. The abstract review of norm by the Constitutional Court could be permitted, but not by the Supreme Court.
In case of Municipal Ordinance, the abstract review of norm against it should be restricted more severely than that against legistlative ordinace. But in the point of principle of power separation, there would be no problem because the Municipal Ordinance is under the law and the local congress is just a kind of administrative organ In conclusion, the abstract review of norm against law would be not permitted. The abstract review of norm against legistlative ordinace by the Supreme Court should be not permitted, but could be permitted by the Constitutional Court. But in the case of Municipal Ordinance, the abstract review of norm against it shuold not be permitted.
The premise of litigation should be lightly treated as meaning a little relationship with the case, and the objective litigation would suffice the fulfillment of 'premise of litigation'.

영어초록

The abstract review of law is not permitted in relationship with the congress due to the damage of democracy. 'The premise of judgement' should be interpreted in relationship with the matter of power separation between Congress and Constitutional Court.
The abstract review against legistlative ordinance among administrative legistlations has nothing to do with the damage of democracy, but it should be conrolled in the aspect of administrative work. Thus 'the premise of judgement' should be interpreted not in relationship between Congress and Constitutional Court, but in relationship of power distribution between the Supreme Court and the Constitutional Court. In the meaning of enbroadening the width of letigation possibility and right saving, the abstract review of norm could be permitted in some aspect, but it has the limits of not being violated against the principle of power balance. The abstract review of norm by the Constitutional Court could be permitted, but not by the Supreme Court.
In case of Municipal Ordinance, the abstract review of norm against it should be restricted more severely than that against legistlative ordinace. But in the point of principle of power separation, there would be no problem because the Municipal Ordinance is under the law and the local congress is just a kind of administrative organ In conclusion, the abstract review of norm against law would be not permitted. The abstract review of norm against legistlative ordinace by the Supreme Court should be not permitted, but could be permitted by the Constitutional Court. But in the case of Municipal Ordinance, the abstract review of norm against it shuold not be permitted.
The premise of litigation should be lightly treated as meaning a little relationship with the case, and the objective litigation would suffice the fulfillment of 'premise of litigation'.

참고자료

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