사법권한 배분의 기준과 모델

Abstract

The Constitutional Court, like ordinary courts, exercises judicial power. Concerning how to allocate judicial powers between the Constitutional Court and ordinary courts, two standards of allocation might be suggested: one is that based upon principle, the other, upon policy. Issues particular to constitutional adjudication should be left to the Constitutional Court. With regard to particularity, dichotomy that divides constitutional issues from sub-constitutional issues cannot be intact sustained. Issues arising from conflicts between democracy and constitutionalism can be properly handled by the Constitutional Court. Individual control over ordinary and administrative power can be properly exercised by ordinary courts. However, institutional control over political power should be left to the Constitutional Court. Two models of allocation might be conjured up. One is horizontal division model, the other, vertical coordination model. Although each model has its own strong and weak points, the latter seems better alternative in three aspects. The function of the Constitutional Court and ordinary courts resemble; Watershed to divide tasks of the both judiciaries is not easy to find; Organizational and human resources abound in ordinary courts can be made use of while supplementary character of the constitutional adjudication sustained.