법원의 재판에 관한 헌법소원심판 연구 -헌법재판소법 개선안 도출을 중심으로- = A Study on the Constitutional Complaints Against Court Trials -Proposing Amendment Provisions for the Constitutional Court Act-

다국어 초록 (Multilingual Abstract)

“We are not final because we are infallible, but we are infallible only because we are final.” This is the famous quote left by U.S. Supreme Court Justice Robert Jackson in his concurring opinion in Brown v. Allen (1953). This cynical remark implies that, as a human institution, the Supreme Court can make mistakes and its decisions are not always correct. Thus, the finality of court trial does not necessarily linked to infallibility; indeed, the opposite can be true. Through this statement, Justice Jackson simultaneously emphasized the Supreme Court's ‘judicial modesty’ as well as ‘judicial accountability’.
Just as Justice Jackson's confession reminds us that, from the perspective of ‘judicial modesty’, judges are human and therefore fallible, we inevitably arrive at the next question: from the perspective of ‘judicial accountability’, how should we remedy violations of fundamental rights that result from such human limitations in court trials? Recent amendments to the Constitutional Court Act that seek to include court trials within the scope of constitutional complaints are not motivated by a particular distrust of the judiciary. Rather, they represent legislative efforts to close the last gap in the system of constitutional safeguards designed to protect people from infringements on their fundamental rights caused by all public powers, including legislative, executive, and judicial power. The Constitutional complaints on court trials should therefore be approached not as a weakening of judicial power, but as a means of eliminating the final blind spot in the constitutional complaint system in order to guarantee the fundamental rights of the people.
There has already been a lot of prior researches on constitutional complaints against court trials, and the issue has been discussed on numerous occasions. Therefore, so as to avoid repeating existing debates, this article first examines the validity of the recent claim that the introduction of constitutional complaint against court trial by legislation would be unconstitutional. It then summarizes the main contents of the pending bills to amend the Constitutional Court Act currently submitted to the National Assembly, and evaluates the validity of those proposals. Finally, based on such analysis, the article discusses what kind of amendment to the Constitutional Court Act would be realistically acceptable in today's Korean context.