헌법재판의 집행력 담보 방안에 관한 비교법적 고찰과 제언 ― 작위의무 미이행 시 이행강제금 부과를 위한 헌법재판소법 개정을 중심으로 ―

초록

The purpose of this study is to compare and analyze the problems that may arise when the measures mandated by the Constitutional Court, which should have binding legal force are delayed by the National Assembly, which is a legislative body and the government, which is an administrative body. In particular, this paper attempts to examine the problem caused by the destruction of the separation of powers which is one of the most important values in the constitution. After arguing the seriousness of this problem, this study proposes to give self-executive power to the decision of the Constitutional Court. To begin with, this paper will first examine the background and process behind the decision on the impeachment of President, which was made by eight justices instead of the nine required by the Constitution, focusing on the Acting president's refusal to comply with the Constitutional Court’s decision. Additionally, This paper seeks to analyze how the National Assembly’s legislative inaction, following the Constitutional Court’s decision on the National Referendum Act, has rendered the President’s constitutional authority ineffective. Through these two cases, we examine the damage to the separation of powers that occurred due to non-fulfillment of the Constitutional Court’s decisions, raise a problem, and find a solution. As a method, this paper first examines how to secure the enforcement power of the constitutional trial in a comparative way. Through the cases of common law system, Canada, and Germany, we examine the existence of each country's constitutional court enforcement power system and then discuss whether this can be applied to the Constitutional Court of the Korea. Secondly, this paper compares and analyzes various legal measures to ensure enforceability, including the crime of dereliction of duty under the Criminal Code, special provisions related to dereliction of duty, and the imposition of compliance enforcement fines. Based on this analysis, this paper concludes by proposing the imposition of compliance enforcement fines as the most effective means of ensuring compliance with Constitutional Court decisions, and proposes amendments to the Constitutional Court Act to legislate them.

키워드