위헌법률심판절차에서 사법작용의 당부를 심사할 수 있는지(下) - 헌법재판소 2012. 5. 31. 선고 2009헌바123등 전원재판부 결정에 대하여 -

Abstract

The former Act on Regulation of Tax Reduction and Exemption(“the Tax Reduction Act”) and its addendum provision of this case acknowledged temporary exceptions for corporate tax imposition on corporations with conditions, but if conditions are not fulfilled, corporate tax reduction based on the addendum provision of this case should be paid under the principle. Legislators wholly amended the Tax Reduction Act (hereinafter “the amendment of this case”) on Dec. 31, 1993 and there was no provision as to validity of the addendum provision of this case. Supreme Court Decision 2006Du19419, Nov. 27, 2008 affirmed the former Supreme Court precedents and stated the meaning of special circumstances and standards for determination. It held that in case of the addendum provision of this case, it is valid due to special circumstances after the amendment of this case. But Constitutional Court Order 2009HunBa123, May 31, 2012 (“the order of this case”) held that “it is unconstitutional to interpret the addendum provision of this case not invalidated despite the whole amendment of this case.”The essence of constitutional petition under Article 68 (2) of the Constitutional Court Act (“the Act”) is equal to adjudication on the constitutionality of statutes. In Article 68 (2) of the Act procedure, the claim is unlawful if the reason why the pertinent statute is unconstitutional is not specifically shown. It is unlawful for the Constitutional Court to review not "the statute itself's unconstitutionality" but “the court's interpretation of the law.” The order of this case saw the issue of the addendum provision of this case's ex post facto invalidation as the statute's unconstitutionality, but it is illogical, since the Constitutional Court's order to hold a taxation basis statute as unconstitutional may be a cause for the statute's ex post facto invalidation (the principle of the priority of superior law issue), but the constitutional old law repealed by the new law also may be a cause for ex post facto invalidation (the principle of the priority of newly established law), and the latter is unrelated to the statute's unconstitutionality. Thus, where claimants asserted invalidation without mentioning the addendum provision of this case's unconstitutionality, it is illogical for the Constitutional Court to hold that the statute itself's unconstitutionality is at issue since the court interpreted the addendum provision of this case as valid. Claimants merely criticised interpretation of the law of the court rejecting their allegation and the elements of lawfulness can not be seen as satisfied. The adjudication on the constitutionality of statutes system is control over the National Assembly's legislative act, not over administrative·judicial act. As the Constitutional Court reasoning, although the court erred in its interpretation of the addendum provision of this case as valid invaded and invaded legislative power, it does not meet the elements of lawfulness since the court may be responsible, but it does not mean that the legislative branch erred. In light of adjudication system on the constitutionality of statutes based on the principle of the separation of powers or the constitutional law precedents in Germany or the US, unless the principle of separation of powers is abolished, the adjudication system on the constitutionality of statutes can not be used as control over the court. Despite the form of the order of this case as qualified unconstitutional order, the disposition is clearly control over a trial. Our constitution does not allow a trial petition although it is a matter of constitutional law maker's policy decision. The tests for adjudication on the constitutionality of statutes are constitutional provisions and the principle of constitutional law. The principle of constitutional law undergoing constitutional debate and proof can be the test, and merely conflicts in statutes or relatedness to principle of the constitutional law do not render the issue as constitutional one. Thus, the issue of this case is that of statutory level for statute interpretation and application and not the issue of constitutional dimension. Lack of express provision as to the addendum provision of this case triggered dispute, but the Constitutional Court held invalidity of the addendum provision of this case under the principle of no taxation without the law and mentioned the principle of no punishment without the law. The “temporary law theory” can be referred to retrospective effect acknowledgement without retrospective effect provision in the temporary law. In light of German theory for punishment law as temporary law, without an express provision, The Supreme Court stated general rules and the test for exceptions and interpreted that the addendum provision of this case as a taxation basis statute is valid as the special circumstance, which is hard to view as unjust. Further, the addendum provision of this case applies to a corporation that had received exceptional advantage for a limited time by asset re-evaluation. Thus, Supreme Court's interpretation of the law does not impose unforeseeable burden on claimants or allow arbitrary execution of the law on the part of taxation authorities. If “legislator's error” is acknowledged, the court's interpretation of the addendum provision of this case pursuant to purpose based on objective basis for presuming a legislator's intent can not be held as violating the principle of no taxation without the law. Some scholars assert the need for a trial petition for guarantee of fundamental rights or uniform interpretation of the constitution. It can not be viewed as interpretation of our Constitution which differs from the German framework statute. The Constitutional Court precedents took the view that the introduction of a trial petition is unconstitutional. On the other hand, the Constitutional Court held that a trial which applies the statute that the Constitutional Court held as unconstitutional can be subject to constitutional petition exceptionally. Such Constitutional Court order can not be accepted as it is since it contains issue of the legal principle as to the Constitutional Court order's binding force. In the procedure of adjudication on the constitutionality of statutes as control procedure over legislative act, trial control, not norm control, can not be done. If the Constitutional Court in the above procedure attempts control over a judicial act under the pretext of review on statute's unconstitutionality, the principle of the separation of powers will be harmed and it will result in acknowledgement of trial petition currently banned. Thus, rationality of the order of this case is hard to be acknowledged since it deviates from constitutional trial's basic structure and order. As to the order of this case, the following issue such as how to deal with the request for a new trial is not whether to acknowledge “the Constitutional Court order's binding force as to statute's unconstitutionality as premise for a trial”, but it is whether other national institutions will acknowledge its validity in a case where “substantial trial petition acceptance order” is rendered, which the Constitutional Court does not permit in our legal system and which violates the principle of the separation of powers and the principle of governance by the law. The position denying its effect does not deny the Constitutional Court order's binding force under Article 107 (1) of the Constitution, but it purports to reject the effect of “substantial trial petition acceptance order” which violates the Constitution. The current Constitution endows both to the Supreme Court and the Constitutional Court its own power to the interpretation of the Constitution. Thus, the Supreme Court and the Constitutional Court each exercise interpretation of the Constitution within its power and it is expected that they respect each other to avoid conflict. Thus, it is important to comply with the principle of separation of powers. If one institution abuses its power or exercises trial right beyond justified limits, it will trigger serious problems legally and practically, and ultimate injury will be done to citizens. If the amendment of a statute is discussed in this regard in the National Assembly, legislation must ensure that a judicial act or administrative act (not a legislative act) shall not be controlled in the procedure of adjudication on the constitutionality of statutes. Such legislation prevents circumstances where our Constitutional order such as the principle of separation of powers or the principle of governance by the law, etc. is seriously injured and contributes to the guarantee of legal stability.