韩国宪法诉愿制度的理论与实践解析
发布时间：2018-12-19 20:29
【摘要】： 在现代违宪审查制度中,作为直接保护公民宪法权利的宪法诉愿制度为个人面对国家寻求直接的基本权利救济提供了有效的机制,也对维持宪法秩序发挥了重要的作用,已经引起了广泛关注。而韩国作为第一个将宪法裁判制度,尤其是宪法诉愿制度引进亚洲的国家,在这些年的发展中也已取得了显著的成效。作为地缘相近,文化相似的中国,对韩国这一制度的研究具有理论和实践意义。 韩国的“宪法诉愿制度”是由1987年第6共和国修订宪法首次引入,并在《韩国宪法裁判所法》第68条至75条中规定,是宪法裁判所的五大功能之一。在韩国,宪法诉愿是指在公权力侵害国民基本权利时,宪法裁判所通过宪法诉讼程序,保障公民基本权利的宪法裁判制度。宪法诉愿的裁判机关是宪法裁判所。宪法诉愿制度具有保障国民基本权利,使被侵害的基本权利得以救济的本质,除此之外,其还具有维持宪法秩序、守护宪法的功能,并在实效和程序上特别强调这两种功能的均衡。 根据《宪法裁判所法》第68条,韩国宪法诉愿制度按其性质可分为两种,一种是基本权被公权力侵害而请求的权利救济型宪法诉愿,第二种是违宪法律的提请被法院否决的情况下,由提请申请人请求的违宪审查型宪法诉愿。宪法诉愿的审判对象主要是,韩国宪法上保护的基本权被公权力侵害时,该公权力的行使和不行使。具体分为立法权,行政权,司法权,统治行为等。 20年来,韩国宪法裁判所为保护韩国国民基本权和为建立良好的宪法秩序而设立的宪法诉愿制度发挥了巨大的作用。作为一个宪政后发国家,无论从案件数量还是胜诉率,韩国是这一制度都堪比其他宪政发达国家,体现了其优越性和可借鉴性。 同时,由于韩国宪法诉愿制度还存在理论方面和运行过程的不足,对于没有明确规定的领域已经引起了学界争议。第一,宪法诉愿审查对象的范围中具有一定的争议,包括对宪法规范和宪法裁判所裁决的宪法诉愿是否认定,对法院裁判的宪法诉愿是否认定,对检察机关的起诉决定是否认定,以及对统治行为的宪法诉愿是否认定等;第二,宪法诉愿的补充性原则是否应当以法律明文的方式予以认可,以及是否承认其例外;第三,是否用法律明文认可“假处分”决定等。 本文的意义在于详细介绍韩国宪法诉愿制度,研究其理论框架、功能价值,形式效力,并整理实际运行中存在的问题,力求在研究学习的基础上提供一定的借鉴意义。
[Abstract]:In the modern unconstitutional review system, as a direct protection of citizens' constitutional rights, the constitutional appeal system provides an effective mechanism for individuals to seek direct relief of basic rights in the face of the state, and also plays an important role in maintaining the constitutional order. Has aroused widespread concern. Korea, as the first country to introduce the constitutional adjudication system, especially the constitutional appeal system, has achieved remarkable results in the development of these years. As a geographically similar and culturally similar China, the study of Korea's system has theoretical and practical significance. The constitutional appeal system of Korea was first introduced by the 6th Republic of 1987, which was amended by the Constitution, and stipulated in articles 68 to 75 of the Korean Constitutional Court Law, which is one of the five functions of the Constitutional Court. In Korea, constitutional appeal refers to the constitutional adjudication system which guarantees citizens' basic rights through constitutional litigation procedure when public power infringes on national basic rights. The judicial organ of constitutional appeal is the constitutional court. The constitutional appeal system has the essence of protecting the basic rights of the people and making the infringed basic rights remedy. In addition, it also has the function of maintaining the constitutional order and guarding the constitution. And in the actual effect and the procedure specially emphasizes these two kinds of function the balance. According to Article 68 of the Constitutional Adjudication Law, the Korean constitutional appeal system can be divided into two types according to its nature, one is the right relief appeal that the basic right is infringed upon by the public power. The second is the unconstitutional constitutional appeal, which is requested by the applicant if the petition for unconstitutional law is rejected by the court. The trial object of constitutional appeal is that when the basic right protected by the constitution of Korea is infringed by public power, the public power is exercised and not exercised. Specifically divided into legislative power, executive power, judicial power, governance and so on. Over the past 20 years, the constitutional appeal system established by the Korean Constitutional Court to protect the basic rights of Korean nationals and to establish a good constitutional order has played a great role. As a post-constitutional country, whether from the number of cases or the rate of success, Korea is the system can be compared with other constitutional developed countries, which embodies its superiority and can be used for reference. At the same time, due to the deficiencies in theory and operation of the constitutional appeal system in South Korea, there has been controversy in the field which has not been clearly stipulated. First, there are certain disputes in the scope of the object of review of the constitutional appeal, including the determination of the constitutional norms and the constitutional judgment of the constitutional appeal, the determination of the constitutional appeal against the court decision, and the determination of the constitutional appeal against the court. Whether the prosecution decision of the procuratorial organ is recognized, and whether the constitutional appeal of the ruling act is recognized or not; Second, whether the supplementary principle of constitutional appeal should be recognized in the form of legal express, and whether to admit the exception; third, whether to explicitly approve the decision of "false disposition" by law. The significance of this paper is to introduce the appeal system of the constitution of Korea in detail, to study its theoretical framework, function value, formal effect, and to sort out the problems existing in the actual operation, and to provide some reference significance on the basis of the study and study.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：DD911;D931.26
本文编号：2387410
[Abstract]:In the modern unconstitutional review system, as a direct protection of citizens' constitutional rights, the constitutional appeal system provides an effective mechanism for individuals to seek direct relief of basic rights in the face of the state, and also plays an important role in maintaining the constitutional order. Has aroused widespread concern. Korea, as the first country to introduce the constitutional adjudication system, especially the constitutional appeal system, has achieved remarkable results in the development of these years. As a geographically similar and culturally similar China, the study of Korea's system has theoretical and practical significance. The constitutional appeal system of Korea was first introduced by the 6th Republic of 1987, which was amended by the Constitution, and stipulated in articles 68 to 75 of the Korean Constitutional Court Law, which is one of the five functions of the Constitutional Court. In Korea, constitutional appeal refers to the constitutional adjudication system which guarantees citizens' basic rights through constitutional litigation procedure when public power infringes on national basic rights. The judicial organ of constitutional appeal is the constitutional court. The constitutional appeal system has the essence of protecting the basic rights of the people and making the infringed basic rights remedy. In addition, it also has the function of maintaining the constitutional order and guarding the constitution. And in the actual effect and the procedure specially emphasizes these two kinds of function the balance. According to Article 68 of the Constitutional Adjudication Law, the Korean constitutional appeal system can be divided into two types according to its nature, one is the right relief appeal that the basic right is infringed upon by the public power. The second is the unconstitutional constitutional appeal, which is requested by the applicant if the petition for unconstitutional law is rejected by the court. The trial object of constitutional appeal is that when the basic right protected by the constitution of Korea is infringed by public power, the public power is exercised and not exercised. Specifically divided into legislative power, executive power, judicial power, governance and so on. Over the past 20 years, the constitutional appeal system established by the Korean Constitutional Court to protect the basic rights of Korean nationals and to establish a good constitutional order has played a great role. As a post-constitutional country, whether from the number of cases or the rate of success, Korea is the system can be compared with other constitutional developed countries, which embodies its superiority and can be used for reference. At the same time, due to the deficiencies in theory and operation of the constitutional appeal system in South Korea, there has been controversy in the field which has not been clearly stipulated. First, there are certain disputes in the scope of the object of review of the constitutional appeal, including the determination of the constitutional norms and the constitutional judgment of the constitutional appeal, the determination of the constitutional appeal against the court decision, and the determination of the constitutional appeal against the court. Whether the prosecution decision of the procuratorial organ is recognized, and whether the constitutional appeal of the ruling act is recognized or not; Second, whether the supplementary principle of constitutional appeal should be recognized in the form of legal express, and whether to admit the exception; third, whether to explicitly approve the decision of "false disposition" by law. The significance of this paper is to introduce the appeal system of the constitution of Korea in detail, to study its theoretical framework, function value, formal effect, and to sort out the problems existing in the actual operation, and to provide some reference significance on the basis of the study and study.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：DD911;D931.26
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