헌법재판소법 제47조 제3항 단서 중의 종전 합헌 결정 전의 형사판결에 대해 재심을 통해 면소 판결을 할 수 있는가?

Abstract

This paper reviews the judgment of 2019Do15167. This decision could cause misunderstandings. Is it valid to pronounce a verdict on retrial cases that were finalized before the previous constitutional decision? The case is as follows: the petitioner requested a retrial for a previous case that was finalized before the date of last constitutional decision. The retrial was requested based on Article 47, Paragraph 4 of the Constitutional Court Act. However, the court made a retrial commencement decision, which was finalized. The trial and appellate court render a verdict of acquittal. The Supreme Court deemed this judgment to be valid. However, the retrial commencement decision was deemed illegal. The Supreme Court stated that a retrial case is valid only if the decision was made after the day following the previous constitutional decision(2015Mo1475). This decision only says that if there’s a finalized retrial commencement, the court has no choice but to render a verdict of acquittal. This judgment is problematic if understood as follows: (1) retrials can be requested for criminal judgments before the previous constitutional decision; (2) in this case, the court must render a verdict of acquittal. Article 47, Paragraph 4 of the Constitutional Court Act reads as follows: "In cases referred to in paragraph (3), a retrial may be requested with respect to a conviction based on the statute or provision thereof decided as unconstitutional." However, this provision did not reflect the addition of Paragraph 3 of Article 47 of the Constitutional Court Act. It needs to be amended as follows: "In cases referred to in paragraph (3), a retrial may be requested with respect to a conviction based on the statute or provision thereof decided as unconstitutional and loses its effect.“