재판소원의 금지와 원처분주의

Abstract

If the Supreme Court applied the legal provisions declared unconstitutional by the Constitutional Court, as a Constitutional Court in order to quickly and efficiently relieve the fundamental rights of the people and at the same time secure the effectiveness of the unconstitutional decision, It would be necessary to cancel not only the Supreme Court's judgment but also the original administrative disposition at the same time. In order to file a constitutional complaint against not only administrative disposition but also court trials, in accordance with the principle of supplementation, the final judgment of the final trial is subject to judgment in principle. However, the res judicata of the court does not reach a direct constitutional issue, that is, a judgment on whether fundamental rights are violated in principle. The principle of supplementation only requests administrative disposition to preferentially receive relief from rights through court trials. And it cannot be immediately concluded that even a constitutional complaint against the original administrative disposition itself that caused the trial was excluded from the legal text “excluding judgment of the courts.” There is no reason to deny the constitutional complaint against the original administrative disposition if the court has caused the irrevocable result of the judgment that used the original administrative disposition as the subject of judgment. The judgment of dismissal of the retrial is because the only procedure in which the judgment subject to retrial can be canceled was blocked by denying the binding force of the limited unconstitutional decision. The attitude of the current Constitutional Court Act on constitutional complaints does not deny the constitutional complaint against the original administrative disposition in accordance with principle of the original disposition of the revocation suit. It would be reasonable to regard the exclusion of trials from the subject of constitutional complaints in principle as prohibiting only constitutional complaints against the trial itself. Constitutional complaint against the ruling on the administrative appeal is illegal unless the ground is that the ruling itself has a unique reason for unconstitutionality. However, if a constitutional complaint is filed against the ruling itself due to its own reasons for unconstitutionality and illegality, it can be argued by filing a revocation suit, making it illegal against the principle of supplementation.