http://chineseinput.net/에서 pinyin(병음)방식으로 중국어를 변환할 수 있습니다.
변환된 중국어를 복사하여 사용하시면 됩니다.
裵相五 忠南大學校 法學硏究所 1992 法學硏究 Vol.3 No.1
Judicial review which means that ordinary courts may declare any congressional act void when they violate the constitution is the backbone of the United States's constitutional law. The doctrine of judicial review has been widely admired by lawyers and scholars in the U.S. as well as in foreign countries. Also many countries including Japan currently adopt such system of constitutional review by judiciary and Korea once had experienced such a system during the Third Republic too. This dissertation intends to analyze various aspects of judicial review in the U.S., and problems of its implementation in to the constitutional system of Korea. This consists of eight chapters. In Chapter 1 "Introduction", the origins, meaning, and different types of judicial review are described and also the scope and purpose of the research is explained. In Chapter 2 "Characteristics of the U.S. Constitution and Federal Judiciary", characteristics of the U.S. Constitution such as federal system, separation of powers, and people's sovereignty, and origin and jurisdiction of federal judiciary are touched upon. Chapter 3 "Establishment of Judicial Review and Transformation of American Judiciary" has dealt with the Origin and development of judicial review, especially with, Marbury v. Madison, and other landmark cases by Chief Justice John Marshall. In Chapter 4 "Scope of Judicial Review", the issue how the judiciary composed of judges not elected by people can declare congressional acts unconstitutional is scrutinized. Thus various interpretations have been made to give democratic legitimacy to the practice of judicial review. Traditional views include those of James B. Thayer, Herbert Wechsler and Alexander Bickel. Also so-called morality-philosophy approach represented by many young scholars including Kenneth Karst, Terrance Sandalow, Paul Brest, Michael Perry, Harry Wellington and Laurence Tribe is also recognized important as a new trend of constitutional scholarship. However, the power granted to federal courts to declare congressional acts unconstitutional is not unlimited. Chapter 5 "Limit of Judicial Review deals with those Problems. First of all, the courts may only decide when 'cases and controversies arise. Second, only those who have standing to sue may bling actions in federal courts. Also courts may avoid to decide constitutional issues when they can settle cases by interpreting and applying statutes. Finally, courts may and should not enter into political question. Though these doctrines had been applied for a quite long times, the lines of demarcation is still fluctuating. Thus controversies still arise as to the limit of the judicial review. In Chapter 6 "Procedure of Judicial Review and Effect of the Decision" deals with how the constitutional litigation can be made in the U.S. and the effect of the decision holding certain acts unconstitutional are analyzed in detail. Finally, we arrive at the "Issues of Judicial Review in the U.S. and Possibility of Implementation of Judicial Review in the Korean Constitutional System" in Chapter 7. In the Concluding Chapter, major characteristics of the U.S. Constitution concerning judicial review are again reexamined, and current issues of constitutional adjudication are also analyzed. As a conclusion, the author carefully argues that political, social and judicial conditions are prerequisite to whether or not the system of judicial review succeeds in Korea. Specifically the social and political environments where decisions by courts are respected by the people as well as by the Executive and Legislative branches are extremely important. Also the courts should be more progressive to the protection of political and civil rights of the people. In other words, the courts should not be self-retrainted when they are dealing with human rights issues. Finally, the judicial system of Korea should be reformed so that judges might be with more freedom and independence. When judicial review is to be incorporated into the constitutional system of Korea, many factors which contributed to the successful establishment of judicial review in the U.S. should be considered. Furthermore, many experiences in the U.S. concerning the scope and limit of judicial review will be also helpful when the system is once adopted in Korea in the near future as is now expected.