헌법소원의 직접성 요건에 관한 고찰

Abstract

The directness requirements required in relation to constitutional complaints which are legal norms, are conceptually separate from the exhaustion of other remedies that require prior relief procedures, but in Korea, regulatory control is divided into courts and the Constitutional Court.
 The conventional Constitutional Court's decision has recognized exceptions to the directness requirement based on whether or not the executive action is discretionary, since the directness of the base law is exceptionally recognized if the execution action is a binding action. However, the Constitutional Court has recently been confused about the criteria and scope of exceptions to directness requirements, such as acknowledging the directness of the grounded law based on expectability, if a specific enforcement act is scheduled, that is, even if it is uniquely stipulated.
 The directness requirement in the petition is not a prestigious requirement in the Constitution and Constitutional Court Act, but it is a legal requirement to effectively realization the basic rights of the people by separating functional power between the court and the Constitutional Court. Therefore, the Constitutional Court should consider the ideology of guaranteeing the basic rights of the people in setting the requirements for recognition of directness, but should present more predictable and clear standards that can harmonize the efficiency of the constitutional trial with the people's right to trial.