법형성이 아닌 법발견(법해석)인 합헌적 법률해석

Abstract

The constitutional interpretation of law is guided by the principle of statutory construction that provides for the interpretation of a statute as conforming to the Constitution, if possible, when the wording of the statute is interpreted diversely and leaves room to be construed as either constitutional or unconstitutional. In that sense, all interpretation that renders an unconstitutional statute as constitutional is not a constitutional interpretation. Regarding the formation of law, the institution that interprets and applies the law usurps the authority of the legislative branch. This is considered the constitutional formation of law rather than the constitutional interpretation of law, given that the latter is entrusted to the institution in charge of interpreting and applying the law, not to the legislative branch. Therefore, the constitutional formation of law that includes analogy and teleological reduction should be distinguished from the constitutional interpretation of law, inasmuch as the constitutional formation of law is impermissible in certain areas and requires more careful consideration backed by rigorous reasoning, especially related to the constitutional interpretation of law by the Constitutional Court because such interpretation is deemed generally binding as opposed to the constitutional interpretation of law by other government institutions. Accordingly, the constitutional interpretation of the Constitutional Court itself can have influence over the legislative authority. Thus, the constitutional formation of law that is viewed as an area of exercising authority in place of the legislative branch should be allowed only if strict requirements are met. In this respect, the constitutional formation of law may set certain limitations upon decisions of limited constitutionality and limited unconstitutionality, which cannot be explained solely based on the constitutional interpretation of law. As such, the constitutional interpretation of law and the constitutional formation of law should be strictly distinguished and their permissibility separately examined. In short, the constitutional interpretation of law should be confined to meanings that are assigned to words in a statute.