형사사건의 선결문제에서 수소법원(受訴法院)의 심사범위와 그 한계

Abstract

In the preliminaries of criminal cases, it is still a difficult question whether the criminal court can examine the illegality or effectiveness of administrative dispositions related to the elements of the crime. In a criminal case, it is reasonable to assume that the court of a lawsuit can examine and judge the violation of the administrative disposition, which has become a matter for a prior decision, in a limited way. If the illegality of the administrative disposition, which became a matter of pre-determined, is objectively clear and it is not necessary to punish the accused, etc. the criminal court may recognize the illegality of the administrative disposition. This is the case when the competent administrative agency clearly violates an essential procedural requirement stipulated by the statute or when the precedent for the illegality of the administrative dispositions is firm. However, when the violation of the Administrative Procedure Act or procedural error in administrative dispositions is disputed in interpretation, it is not desirable for the criminal court, not the administrative court, to actively review the illegality of the administrative disposition. In addition, the criminal court needs to be more careful when examining the substantive illegality of the administrative disposition, which is a preliminary question. It is the jurisdiction of the administrative court as a specialized court to examine the substantive illegality of an administrative disposition through the discretionary or balancing theory, the general principles of administrative law. In an investigation process, the prosecutor cannot closely examine the substantive and procedural illegality of the administrative disposition, which is a component of the crime. The Constitutional Court of Korea directly should not cancel an administrative act on the ground of procedural illegality in the constitutional complaint adjudication on suspension of the indictment. It may violate the jurisdiction of the specialized court. Procedural errors in administrative dispositions are not subject to adjudication in constitutional complaints, and judgments on their violations fall within the competence of the administrative court. This is not a question of constitutional interpretation but statutory interpretation.