노동조합법 제2조 및 제3조 개정법률안에 대한 거부권 행사의 부당성

Abstract

This article aims to look into the constitutional legitimacy of the possible exercise of the President's veto power to prevent the proposed amendments to Articles 2 and 3 of the Trade Union Act, which were referred to the plenary session of the National Assembly at the end of June 2023 with the collaborative initiation of the opposition parties despite the resistance of the ruling party, from becoming law.
 The presidential veto is a power that allows the president to object to a bill passed by the National Assembly and return it to the National Assembly for reconsideration. There are some competing views on the legal nature of this power, which is understood as a suspension or release condition, but it is reasonable to understand it as a unique constitutional mechanism that restrains the finalization and promulgation of laws for a certain period of time, since the request for reconsideration itself does not actively create a legal effect on whether the bill is confirmed or not.
 The constitutional function of the presidential veto has been recognized to be the procedural control of rushed, frivolous, or flawed legislation but it is noteworthy to growing focus is given to the presidential check on the National Assembly to promote the balance of power. As the function of the veto has been expanded, there has been a strengthening tendency to argue that there are no legal limitations on the requirements for its exercise so that it can be used out of policy disagreement or political motivation alone. Against this tendency, counter arguments have been consistently put forward that there should be inherent limitation on the exercise of the veto power so that it can be justified only if the target legislation is (1) unconstitutional, (2) unenforceable, (3) contrary to the national interest, and (4) politically motivated to exert political pressure by unreasonably restricting executive power in violation of the separation of powers. I conclude that the inherent limitation theory is preferred when considering the compatibility of the basic values, principles, and institutions of a democratic republic, the constitutional implications of the constitutional power structure, and the relative persuasiveness and logical consistency of the arguments. Above all, considering that the legislative power is an inherent function of the National Assembly in accordance with the principle of separation of powers, which is a universal principle that cannot be denied regardless any form of government, and that the veto power is a procedural controlling power, not a substantive formative power, even according to the systematic interpretation of democracy and the rule of law, and that its legitimacy is to control the evils such as legislative dictatorship, not to replace the legislative power, the constitutional principles of a democratic republic cannot justify that the legislative power is neutralized by the abuse of the presidential veto leading to the presidential administrative dictatorship.
 Even if there is an inherent limit in the exercise of presidential veto power, there is a problem that this limit is a ‘political morality of the constitution’ rather than a ‘law of the constitution’ where normative power can be enforced through judicial procedures, and there is no possibility of external control such as judicial review or constitutional adjudication.