Detailed Information

Cited 0 time in webofscience Cited 0 time in scopus
Metadata Downloads

국가인권위원회와 대통령 간의 권한쟁의 결정(2009헌라6)에관한 비판적 고찰Critique on the Case of Competence Dispute between National Human Rights Commission and President

Other Titles
Critique on the Case of Competence Dispute between National Human Rights Commission and President
Authors
박찬운
Issue Date
2011
Publisher
한양대학교 법학연구소
Keywords
국가인권위원회; 권한쟁의; 국가인권위원회 독립성; 파리원칙; 비사법적 인권기구; National Human Rights Commission; Adjudication on Competence Dispute; Independence of National Human Rights Commission; Paris Principles; Quasi-Judicial Human Rights Institution
Citation
법학논총, v.28, no.1, pp.99 - 118
Indexed
KCI
OTHER
Journal Title
법학논총
Volume
28
Number
1
Start Page
99
End Page
118
URI
https://scholarworks.bwise.kr/hanyang/handle/2021.sw.hanyang/169401
ISSN
1225-228X
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.
Files in This Item
Go to Link
Appears in
Collections
서울 법학전문대학원 > 서울 법학전문대학원 > 1. Journal Articles

qrcode

Items in ScholarWorks are protected by copyright, with all rights reserved, unless otherwise indicated.

Related Researcher

Researcher Park, Chan Un photo

Park, Chan Un
SCHOOL OF LAW (SCHOOL OF LAW)
Read more

Altmetrics

Total Views & Downloads

BROWSE