“재판의 전제성” －그 개념의 굴곡의 헌법사－

초록

The term “Chaepan-ui Chonje(prerequisite for judgment)” in Article 107 Section 1 and 2 of Korea’s Current Constitution plays a crucial role in determining jurisdiction between the Constitutional Court and the other courts including the Supreme Court. Some emphasize its literal meaning, “a prior question”; others focus on its hidden meaning, “cases and controversies”. I trace the textual origin of the term, and find that it came from Article 140 Section 1 of the Austrian Federal Constitution(1929), which provided “Voraussetzung eines Erkenntnisses(prerequisite for judgment)”. So, the drafter’s original intent was to bring in the European “konrete Normenkontrolle(concrete norm control)” system, which separated the review of the constitutionality of a law from the case itself, and it should be interpreted as “a prior question”, rather than the American term of “cases and controversies”. The Revised Constitution of 1960, though it imported the German “Verfassungsgericht(Constitutional Court)” and “abstrakte Normenkontrolle (abstract norm control)” system, omitted the European term “Chaepan-ui Chonje”. On the contrary to this, the Revised Constitution of 1962, in the vortex of the sudden adoption of American judicial review system, used the same European term “Chaepan-ui Chonje”, as if it meant “cases and controversies”. After the winding constitutional journey, the term became the “Gate of Janus” which opens from both sides, i.e., European norm control and American judicial review. The term in Article 107 Section 1 means the former, “a prior question”; the same term in Section 2 means the latter, “cases and controversies”.

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