立法裁量論에 관한 硏究

다국어 초록 (Multilingual Abstract)

  Article 40 of the Constitution endows the National Assembly with legislative power. It is resonable that the National Assembly, as legislative body, may exercise its discretion in the use of the legislative power. But it is unclear whether the legislative discretion is authorized and how is the scope of the legislative discretion.<BR>  Being adopted the system of judicial review in several countries, the theory of legislative discretion have a theoretical significance as a restrictive sector. The theory of classification of the legislative discretion is divided into two categories. The one is substantial classification theory of the legislative discretion which decide legislative discretion through the nature of the law or the constitutional article concerned. The other is procedural classification theory connecting with constitutional litigation system.<BR>  There are two points of view in the relation between the legislative discretion and judicial review : the positivism and passivism. And there are two points of view that the significance of theory of legislative discretion have in the judicial review system: the theory of substantial restriction and the theory of the standard of judicial review.<BR>  In Korea, the constitutional court and supreme court have decided 520 constitutional cases based on the theory of legislative discretion up to date. The courts have declared that the legislative discretion is restrictive and have adopted substantial classification theory of the legislative discretion.