국가인권위원회와 대통령 간의 권한쟁의 결정(2009헌라6)에 관한 비판적 고찰

Abstract

The Constitutional Court of the Republic of Korea (hereinafter ``the Court``) dismissed the National Human Rights Commission(hereinafter ``NHRCK``)`s request of adjudication on competence dispute with the President. In this ruling, the majority decided that the NHRCK does not have standing as a claimant to request adjudication on competence dispute. This ruling is considered to have serious impact on the legal status and independence of the NHRCK. In this regard, this article aims to analyze and criticize the Court`s ruling: what are the elements subject to criticism? Firstly, the ruling is hardly supported by the interpretation of Article 111 of the Constitution and Article 61 of the Constitutional Court Act. The Constitution and the Constitutional Court Act may be construed to entitle state institutions with constitutional status to request adjudication on competence dispute. NHRCK, though established by statute, should be recognized to have legal standing as a claimant for competence dispute, for it has sufficient constitutional bases for (its establishment or mandate?), Secondly, the ruling is adverse to the independence of the NHRCK. When the NHRCK`s standing in competence dispute is denied, there is no other way to remedy infringement of its Independence by other state intuitions. Such conclusion is hard to accept in light of the independence of the NHRCK. Thirdly, the ruling is in conflict of the international human rights principles regarding independence of national human rights institutions. The NHRCK is not a mere national human rights institution. As the NHRCK is established based on the Paris Principles and other international human rights norms, the Court should have paid full considerations to these principles. However, the majority in this ruling has neglected the international human rights norms. Finally, the ruling proves that the Court is ignorant of non-judicial human rights institutions. The Court overlooked that human rights are protected by judicial institutions and by non-judicial institutions, such as the NHRCK, as well.