형벌조항에 대한 위헌결정의 소급효 제한- 헌재 2016. 4. 28. 2015헌바216 결정 -

Abstract

According to the Korean Constitutional Court, Korean Constitution has no provision concerning the time range of the effect of the Court's decision that ruled a provision as unconstitutional but delegates it to laws. If so, it is a matter of legislation policy whether any provision of a law which was ruled as unconstitutional by the Court loses its validity ether retroactively to the point of its enactment or prospectively from the issue of the decision. This judgment is valid not only on the Article 47 (2) proviso of the Old Korean Constitutional Court Act but also on the Article 47 (3) proviso of the New Korean Constitutional Court Act (hereafter as ‘the New Law Provision’), considering legislations and adjudications of other countries vary on the admission of retroactive application. Looking into the contents of the New Law Provision, the decision of ‘Constitutional’ in the preceding litigation includes not only the decision of ‘Simply Constitutional’ but also the part that was ruled constitutional in the decision of ‘Constitutional Limitedly.’ And the decision of ‘Unconstitutional’ in the following litigation includes not only the decision of ‘Simply Unconstitutional’ but also the decision of ‘Unconformable’ and the decision of ‘Unconstitutional Limitedly.’ The part that was ruled unconstitutional in the decision of ‘Constitutional Limitedly’ can theoretically be included but the subject does not bear discussion because the Court does not render such decisions any more. Whether the retroactive application should be admitted or not should be decided by the formal identity of the objects of the adjudications that were fixed in the preceding decision of ‘Constitutional’ and the following decision of ‘Unconstitutional.’ In other words, if the pertinent provision of a law was amended - even if the substantial content was not changed -, the retroactive application should be denied since the two objects of the adjudications are not formally the same. And if a final conviction based on the provision thereof decided as unconstitutional was rendered after the decision of ‘Constitutional’ on a provision relating to criminal penalties, the retroactive application should be given not only to the case where the crime was finished after the decision but also to the case where the crime was finished before the decision.