Constitutional Problems Research Articles

Skarga konstytucyjna jako instrument ochrony praw wyborczych jednostki – uwagi na tle skarg konstytucyjnych rozpatrywanych przez Trybunał Konstytucyjny w latach 2012–2023

It seems that currently any attempt to undertake a substantive assessment of the activity of the Polish Constitutional Tribunal, especially after 2015, is doomed to the need to address the problem of the ongoing constitutional crisis in Poland. Nevertheless, the analysis of statistical data allows us to put forward the thesis that the “popularity” of the constitutional complaint as a means of protecting individual freedoms and rights – at least seemingly – has not been completely wasted even in these difficult conditions. It can be concluded that a constitutional complaint is not a commonly used instrument for the protection of an individual’s electoral rights. Nevertheless, given the constitutional problems raised in the constitutional complaints, the structure of this instrument of protection of the constitutional freedoms and rights of the individual prevents effective protection (ie. the possibility of restoring) the infringed electoral rights of the individual.

Istota i cel głosowania per procura dla osób z niepełnosprawnościami

The aim of this publication is to present the essence of the institution of vote per procura as an alternative method of voting for people with disabilities. A circle of voters has been presented, to which a disabled voter can give the right to cast a vote, as well as the qualifications that must be met by a candidate for a disabled voter’s representative. A quite strongly formalized procedure for granting the power of attorney to vote and drawing up an act of such power of attorney has been presented. While positively assessing the voting institution as per procura, at the end it was stated that this type of voting is still an “unresolved constitutional problem” and is often criticized.

Glosa do Wyroku Trybunału Konstytucyjnego z dnia 23 listopada 2022 r., sygn. akt SK 113/20

The commented judgement was issued in a case initiated by a constitutional complaint and concerns the right to possess arms. However, this entitlement is not the crux of the constitutional problem. It is only the background to the main issue, which is the right to good administration. In its judgement of 23 November 2022, ref. no. SK 113/20, the Constitutional Tribunal confirmed that Article 2 of the Constitution of the Republic of Poland guarantees everyone the right to good administration, which is a subjective right and is fully enforceable by means of a constitutional complaint. According to the Constitutional Tribunal, the right to good administration is procedural in nature and is equivalent to the right to a fair trial. The administrative procedure, and in particular the legal rules governing them, must guarantee the party concerned: a) a full and thorough examination of the circumstances relevant to the resolution of the case; b) the right to be heard, i.e. the right to present and defend one’s arguments; c) the examination of the case within a reasonable period of time; d) justification of the decisions taken by the public authorities; e) the right to appeal against the decisions taken at first instance (judgement SK 113/20).

The consequences of Brexit for the constitutional system of the Great Britain

The vote in the 2016 referendum on exit from the EU was held under the slogan “take back con-trol”, which, in particular, meant the return of parliamentary sovereignty, lost as a result of the transfer of some powers to the supranational level and the impossibility for the UK Parliament to influence decisions taken in Brussels. However, in the process of withdrawal, the UK faced a number of constitutional problems that led to one of the most serious constitutional crises in the history of British parliamentarism, caused by the clash of parliamentary and popular sovereignty, on the one hand, and the lack of a written constitution clearly delineating the powers of the three branches of government, on the other hand. This article is devoted to the analysis of the conse-quences of this crisis for the stability of the traditional constitutional system of Great Britain.

The Democratic Sublime: On Aesthetics and Popular Assembly

The Democratic Sublime: On Aesthetics and Popular Assembly

사법개혁과 개헌 방향에 대한 헌법적 관견

Since the enactment of the current constitution, our society has undergone many changes, and there has been a considerable gap between the constitutional norms and the constitutional reality. Reflecting this reality, political parties including the National Assembly are constantly discussing constitutional amendments. It is necessary to secure the efficiency, stability, continuity, and accountability of the state by reforming the power structure, which is the main cause of the state confusion in the turbulent domestic and foreign environment. Therefore, the revised constitution should contain the design for the national stability, prosperity and sustainable development of the Republic of Korea in the future. In order for a successful constitutional amendment to take place, first of all, the active participation of the sovereign people and the securing of democracy through the public debate led by the National Assembly, which is the representative agency, should be given priority. In order to do this, it is necessary to accurately diagnose the problems of the current constitution, which has been claimed by various experts such as the National Assembly and civil society, and to consider the various interests surrounding the amendment of the constitution. The reason why the judicial reform, which has been tried several times by the active efforts of the political party and sometimes at the request of the judiciary, has ended without great achievement is that the people's expectation and desire for judicial reform, the direction of the reform that the political party thinks, The main reason is that the contents of the reform are different. In the end, in order for judicial reform to be a real reform that conforms to the essence of the judiciary, it must be a reform that is appropriate to the needs and standards of the sovereign people, and at the same time, the judiciary itself recognizes its necessity. Furthermore, while the human rights and fundamental rights of the people are protected and respected through fair and neutral trials under the constitution and laws, the ultimate direction and goal of the constitutional amendment should be to decide and enjoy their lives as freely and equally as possible.

Las agencias reguladoras independientes y sus desafíos de legitimidad democrática: revisión de literatura y agenda para el derecho constitucional en Latinoamérica

Abstract The Anglo-Saxon and European literature usually presents independent regulatory agencies as institutions capable of solving some of the problems of constitutional democracies and of satisfying the objectives of the so-called regulatory state. It also shows the presence of some problems, which I call constitutional ruptures, caused by the actions of independent regulatory agencies both at the domestic and global level, and presents various responses to the legitimacy challenges that these ruptures generate. In contrast, although the literature in Ibero-America shows growing progress in understanding these institutions, it has not sufficiently explored these constitutional problems. Based on the literature review, this article seeks to set out some lines of argument around such constitutional problems, so as to contribute to shaping a future agenda for constitutional discussion, especially in the Latin American region.

A lélek lopakodó rehabilitációja

A deep-seated, ’constitutional problem’ of so-called psy-complex (ontologically ‘psy’ is differentthan matter, but it is studied by natural scientific methods) can be detected: ontologically thepsyche is basically different than matter, but the main stream studies of these disciplines take thenatural scientific methods as their research ideal which were created for material beings andthey try to influence and change their ‘object’ by technical-technological attitude. The main aimof this paper to draw attention to some of the main consequences of this dilemma.

법외노조 자치권의 법적 지위에 관한 연구

Workers are free to organize or join labor unions and are assured labor's three primary rights. The guarantee of workers' right to organize under the Constitution and the labor union under the Labor Union Act should be finished the report of the establishment by organizing independently with workers becoming the main body and by having the qualification of not conforming to the active and passive requirements with the aim of improving and maintaining the working conditions and of enhancing other workers’ economic and social position. The administrative agency's recent notification of non-legal union to teachers' union caused a considerable social controversy in relation to the existence of labor unions. This outlawed trade union notification system is what raises a fundamental question about the legal status of a trade union and is what determines the existence of labor unions under the leadership of the administrative authorities, thereby bringing about various constitutional problems. This system has problems such as the regulatory autonomy, the over-packing of risks, the excessive intervention by the administrative agency, and the weakening of workers' right to a trial. When a labor organization of meeting the substantial requirements for a trade union does not receive a certificate of the establishment report, it is considered to be just unable to get a certain amount of protection such as the labor dispute mediation and the application for relief of unfair labor practices, but to be capable of being protected general rights, which are recognized by the subjects of enjoying the basic labor rights. Also, an individual worker who is a member of the organization may apply to the Labor Relations Commission for relief in own name or in the name of the organization concerned when dismissal or other disadvantageous treatment thereof corresponds to an unfair labor practice. When an employer inflicts a damage by infringing on the legitimate unity activities of the organization, the organization needs to be regarded as being capable of claiming the damages for illegal activities.

행정업무운영제도에 관한 연구

Workers are free to organize or join labor unions and are assured labor's three primary rights. The guarantee of workers' right to organize under the Constitution and the labor union under the Labor Union Act should be finished the report of the establishment by organizing independently with workers becoming the main body and by having the qualification of not conforming to the active and passive requirements with the aim of improving and maintaining the working conditions and of enhancing other workers’ economic and social position. The administrative agency's recent notification of non-legal union to teachers' union caused a considerable social controversy in relation to the existence of labor unions. This outlawed trade union notification system is what raises a fundamental question about the legal status of a trade union and is what determines the existence of labor unions under the leadership of the administrative authorities, thereby bringing about various constitutional problems. This system has problems such as the regulatory autonomy, the over-packing of risks, the excessive intervention by the administrative agency, and the weakening of workers' right to a trial. When a labor organization of meeting the substantial requirements for a trade union does not receive a certificate of the establishment report, it is considered to be just unable to get a certain amount of protection such as the labor dispute mediation and the application for relief of unfair labor practices, but to be capable of being protected general rights, which are recognized by the subjects of enjoying the basic labor rights. Also, an individual worker who is a member of the organization may apply to the Labor Relations Commission for relief in own name or in the name of the organization concerned when dismissal or other disadvantageous treatment thereof corresponds to an unfair labor practice. When an employer inflicts a damage by infringing on the legitimate unity activities of the organization, the organization needs to be regarded as being capable of claiming the damages for illegal activities.

몽골 권력구조의 문제점과 개선방안 — 국가최고회의, 대통령 및 내각간의 견제와 균형을 중심으로 —

2022 is the 30th anniversary of the implementation of the 1992 Constitution, which first adopted the principles of free democracy and the rule of law in Mongolia's constitutional history. Mongolia is in the process of realizing a liberal democracy and a rule of law based on the 1992 Constitution.
 However, Mongolian semi-presidential government system, which the current Mongolian constitution adopted, has various political or legal problems in the relationship between the president and the national parliament, and between the president and the prime minister and the cabinet, and between the national parliament and the prime minister and the cabinet, To solve this problem, the national parliament amended the Constitution twice, in 2000 and 2019.
 The purpose of this study is to review the constitutional problems of the distribution of powers between the national parliament, the President, the Prime Minister and the Cabinet, and the problems of checks and balances system in the power structure of the 2019 amended Mongolian Constitution, and is to suggest improvement measures that can realize mutual checks and balances among powers.
 In order to consider these issues, the process and contents of the constitutional amendments in 2000 and 2019 were first reviewed (II). In chapter III, we reviewed how the national parliament, the President, and the Cabinet are formed and state power is distributed in the current Mongolian constitution. In chapter IV, we reviewed checks and balances system in the 2019 amended Mongolian Constitution was examined. In chapter V, we reviewed the problems in how to form the National Assembly, the President, and the Cabinet and how to distribute powers among them in accordance with the principle of separation of powers and suggested several improvement measures.
 Finally, in chapter VI, the implications of Mongolia's attempts to solve them for Korea are examined.

‘The Market’ of European integration: a constitutional problem

‘The Market’ of European integration: a constitutional problem

Der wiederentdeckte Ausnahmezustand

The rediscovered state of emergency The discussion of the constitutional problem of the state of exception has experienced a renaissance in recent years, not least because of the Corona pandemic. This article presents and reviews two important new publications on this topic – the writings “Ausnahmeverfassungsrecht” by Anna-Bettina Kaiser and “Der nervöse Staat” by Tristan Barczak. The central arguments of these book are outlined in detail and critically commented. Within this framework, the relationship of the state of exception to the legal order, the relevance of the concept of constitution, the transformation of the state of exception in the preventive state, and the treatment of the teachings of Carl Schmitt and Giorgio Agamben, among others, are examined.

Constitutional problems of a naturalization oath Focus on the ‘oath of citizenship’ under the Nationality Act

다른 나라의 국적을 후천적으로 취득할 수 있는 귀화는 국민의 범위를 결정한다는 점에서 중요한 헌법적 문제인데, 최근 국적법 개정으로 국민선서 및 귀화증서 수여라는 의례적 요소가 새로 도입되었다. 귀화의 허가요건으로 그 국가의 헌법원칙과 사회질서를 준수하겠다는 의지를 선서와 같은 특정의 형식으로 외부로 표명케 하는 것은 드물지 않은 입법례이다. 국적개념이 연혁적으로 통치자에 대한 신민의 충성의무를 기초로 정립되었던 것과 같이, 귀화선서 또한 정치적 의미를 가진 선서로서 국가에 대한 충성과 애국심을 검증하기 위한 장치로 기능해왔다. 정치적 충성선서로서 귀화선서는 다원성과 개인의 자유를 존립기반으로 하는 민주주의 공동체에서도 그 공동체 유지를 위해 필요한 경계, 즉 특정 헌법과 정치형태 및 이데올로기를 고지하고 그에 대한 준수의 의지를 표명하도록 함으로써 공동체의 통합과 통일성을 추구하기 위한 것이다. 그러나 귀화선서는 귀화자의 새로운 공동체에 대한 결속의 공적 표명일 뿐만 아니라, 귀화허가 여부를 결정짓는 법정요건으로 작용할 수 있다. 현행 국적법상 국적취득은 국민선서를 하고 귀화증서를 수여받은 때인데, 극히 예외적인 경우 이외에는 귀화허가를 받은 모든 사람은 국민선서를 하도록 한다. 즉 국민선서는 대한민국 국적을 취득하기 위해 요구되는 필수적 절차요건이다. 이처럼 자유민주주의 헌법체제에서 귀화신청자의 정치적 가치관을 검증하고자 하는 국민선서는 개인의 내심을 직간접적으로 외부로 나타내도록 강요당하지 아니할 침묵의 자유에 대한 중대한 침해 가능성을 내포한다. 오늘날 다원적, 다문화적 민주주의 사회에서 다양한 출신배경을 가진 귀화자에게 국적취득을 대가로 요구되는 의무적 선서는 선서자의 양심의 자유의 희생하에 충성을 획득하려는 것으로서, 이는 국적이 개인과 국가 간의 법적 유대관계라는 현대적 국적개념에 부합하지 않는다.Naturalization, which allows one to acquire the nationality of another country, is an important constitutional issue in that it determines the scope of citizens. By ths way, with the recent revision of the Nationality Act, a new ceremonial element was introduced: the oath of citizenship and the conferment of the certificate of naturalization. As a requirement for permission for naturalization, it is not uncommon for a country to express its will to comply with the constitutional principles and social order in a specific form such as an oath. Historically, just as the concept of nationality was established on the basis of the duty of loyalty of subjects to the ruler, the oath of naturalization has also functioned as an oath with political meaning and as a device to verify loyalty to the country and patriotism. Even in a democratic community based on pluralism and individual freedom, the oath of naturalization as a political loyalty oath is to inform the boundaries necessary for maintaining the community. In other words, it is to seek unity of the community by confirming a specific constitution, political form, and ideology, and expressing the will to comply with it. However, the oath of naturalization is not only a public expression of the naturalization s solidarity with the new community, but also acts as a statutory requirement to determine whether or not to allow naturalization. Under the current Nationality Act, nationality is acquired when a person has taken a national oath and received a certificate of naturalization. In other words, the national oath is an essential procedure required to acquire Korean citizenship. In this way, in the liberal democratic constitutional system, the national oath to verify the political values of naturalization applicants has a serious possibility of infringing upon the freedom of silence that will not be compelled to directly or indirectly express one s inner opinion, thoughts to the outside. Today, in a pluralistic and multicultural democratic society, the obligatory oath required by naturalized persons of various backgrounds in exchange for acquiring nationality is to acquire loyalty at the expense of the freedom of conscience. However, this does not conform to the modern concept of nationality: nationality is a legal bond between an individual and a state.

Risk of respiratory, gastrointestinal, and constitutional health symptoms: A cross-sectional study of Texas adolescent and young adult nicotine and marijuana vapers

Observational studies investigating the health consequences of vaping among youth and young adults are limited. This study aimed to describe and examine the risk for health symptoms by vape user category (never users, marijuana only, nicotine only, and dual users). Health symptoms included adverse respiratory, gastrointestinal, and constitutional problems. This cross-sectional study analyzed data from Fall 2020, Wave 12 (n = 2389) of the Texas Adolescent Tobacco and Marketing Surveillance System. Chi-square, one-way analysis of variance (ANOVA), and multivariable logistic regression analyses examined the associations between past 30-day vape user category and 15 health symptoms (e.g., coughing, nausea, vomiting, fever). For total symptoms, dual vapers reported the highest mean (2.76[standard deviation = 3.17]), followed by nicotine-only vapers (2.47[2.89]), marijuana-only vapers (1.94[2.60]), and never users (1.56[2.31]), p < .001. Dual vapers and nicotine-only vapers had significantly higher odds of experiencing respiratory symptoms as compared with never users (adjusted odds ratios [AORs] = 2.35, 95% confidence interval [CI]: 1.30, 4.25; AOR = 1.86, 95% CI: 1.22, 2.81, respectively). Marijuana-only (AOR = 2.41, 95% CI: 1.53, 3.79), nicotine-only (AOR = 2.03, 95% CI: 1.38, 2.99), and dual vapers (AOR = 2.03, 95% CI: 1.15, 3.57) had significantly higher odds of gastrointestinal symptoms compared with never users. Dual vapers had significantly higher odds of experiencing constitutional symptoms as compared to never users (AOR = 1.92, 95% CI: 1.10, 3.34). This study uniquely highlights the risk for gastrointestinal symptoms from vaping. Future research and clinical practice should monitor the occurrence of these symptoms and explore potential mechanisms, such as specific flavorings or chemicals, for the link between vaping and health symptoms.

The Constitutive Problem of the Septuagint

Abstract This article problematizes the common distinction between production and reception in biblical studies with Septuagint study as a case in point. The article illustrates the problem in connection with two recent, major translation projects, A New English Translation of the Septuagint and Other Greek Translations Traditionally Included under That Title and La Bible d’Alexandrie. I argue that the binary classification of production and reception is inadequate to capture the textual history of the Septuagint and suggest an alternative way to conceptualize the development.

A variational formulation of thermomechanical constitutive update for hyperbolic conservation laws

In this paper, a variational framework is proposed for the constitutive update of thermomechanical constitutive models in the special case where their input results from quantities directly updated by hyperbolic conservation laws. Both a continuum and a consistent first order accurate discrete settings are derived. The originality of this work lies in that the constitutive update is driven by the rates of some strain measure and the internal energy density in the continuum setting, leading to a rate-type description of the local constitutive problem, and by the updated values at some discrete time of these strain measure and internal energy density in the discrete setting. These quantities are updated by the solution of a system of discrete conservation laws including the first principle of thermodynamics, ensuring that the right shock speeds will be computed. This point is of crucial importance when simulating impact on structures for instance. The proposed variational approach is illustrated for thermo-hyperelastic-viscoplastic solid media, especially using the parameterization of the flow rule direction based on pseudo-stresses proposed by Mosler & co-workers. The proposed discrete variational solver is then coupled with the second order accurate flux difference splitting finite volume method, which permits to solve the set of conservation laws. Comparisons are performed on a set of test cases with numerical solutions obtained with finite elements coupled to an explicit time-stepping and to a temperature-driven variational constitutive update. They allow to show the good behavior of the proposed approach.

Editorial comments: Keeping Europeanism at bay? Strategic autonomy as a constitutional problem

Editorial comments: Keeping Europeanism at bay? Strategic autonomy as a constitutional problem

Corona pandemic and emergency debt as constitutional problems

독일은 2009년 제2차 연방주의개혁 헌법개정을 통해서 국가채무제한 조항을 도입했다. 국가채무제한 조항의 핵심적인 내용은 원칙적으로 새로운 부채를 금지하고, 예외적으로만 경기변동, 자연재해 그 밖에 국가가 통제할 수 없는 재정적 긴급상황에서 국가부채를 인정하는 것이다. 독일은 2019년까지 국가부채를 꾸준히 감소시켜 GDP의 82%에서 60% 수준까지 낮추었고, 헌법상 국가채무제한 조항은 실제 현실을 통제하는 규범력을 가지고 건전한 국가재정운용에 영향을 미치고 있었다. 2020년 코로나위기는 국가의 통제를 벗어나고 독일 경제에 심각한 피해를 주는 예외적인 긴급상황에 해당한다. 코로나위기를 해결하기 위하여 두 번의 추가예산법률을 통해 기존 국가부채의 15% 정도에 해당하는 엄청난 양의 새로운 국가채무를 부담했다. 국가채무제한 조항은 위기 시에는 예외적으로 연방의회 재적 과반수 찬성과 상환의무를 전제로 위기극복을 위하여 필요한 국가채무를 유연하게 확대할 수 있도록 작동하였다. 예외적인 국가부채의 증대가 가능하더라도 과도한 국가부채의 양적인 증가에 대해서는 헌법적 한계가 필요하다. 연방헌법 제115조에 규정된 요건은 불명확한 점이 있지만, 국가부채를 연방의회가 결정하도록 함으로써 민주적 정당성을 제공하고, 상환의무를 부과함으로써 국가채무확대의 남용을 방지할 수 있도록 보완한다. 명시적으로 규정된 것은 아니지만 합목적적 해석을 한다면 다른 헌법적 정당성도 도출할 수 있다. 예컨대 국가채무의 확대는 위기해결에 직접적인 관련성을 갖는 분야에 사용할 수 있을 뿐만 아니라, 비록 위기해결에 직접적 관련성이 없더라도 경제 회복과 공공부문 투자처럼 간접적인 관련성을 가지는 부분에도 국가채무를 통한 재정투입도 정당한 것으로 볼 수 있다. 이 때도 위기극복을 위한 관련성에 대한 판단은 우선적으로 민주적 정당성을 가지는 연방의회가 한다. 연방의회의 판단이 자의적이거나 명백하게 불합리하지 않는 한 그 정당성을 인정하는 것이 예외적인 국가채무 확대 허용으로 국가위기를 극복하려는 헌법개정자들의 의사를 잘 반영하는 것이라 할 수 있다.

Norman Doe’s Proposed Typology of Church-State Interaction and Its Applicability to Comparative Constitutional Law Research

This article examines the types of church-state interaction and their main features found in Lithuanian and foreign legal literature and highlights the three-tier typology of church-state interaction as formulated by Norman Doe, revealing the constitutional problems of its applicability and assigning specific theoretical types to individual states.