형벌조항에 대한 헌법불합치결정

Abstract

This paper primarily examines and analyzes the Supreme Court Decision 2004Do7111a delivered on January 15, 2009 where the Court dealt with the issue of whether a legislative act or its provision thereof related to criminal penalty should be invalidated retroactively, especially when the Constitutional Court declares that such act or its provision fails to conform with the Constitution--i.e., the Constitutional Court's “nonconformity with the Constitution” decision. Under the current principle of law, a criminal statute, once decided as unconstitutional by the Constitutional Court, should not applied retroactively and such decision of unconstitutionality requires prior convictions of the courts based on such statute to be readjudicated. The judgment of non-conformity of statute to the Constitution rendered by the Constitutional Court implicates that such statute violates the Constitution. Thus, in a criminal case where such “non-conformity with the Constitution” decision has absolute retroactive effect, the court should not apply that statute, which decided as not conforming to the Constitution, to penalize criminal defendants. Also, the retroactive application of newly revised act, which the Constitutional Court decided as “nonconforming act to the Constitution”, to the conduct committed before such newly revised act comes into effect is against the principle of nonretroactivity since the people should be free from retroactive criminal law according to Section 1, Article 12 and Section 1, Article 13 of the Constitution. Therefore, ex post facto application of laws to defendants in criminal cases is against the principle of nonretroactivity when the Constitutional Court has held the statute as nonconformity with the Constitution. In the case for review in this paper, the trial court ruled the defendant as not guilty by reasoning that the criminal laws should lose its effect retroactively when the Constitutional Court decided such laws as nonconforming to the Constitution. The appellate court and the Supreme Court also sustained the decision of the lower court, reasoning that the amendment of criminal statutes cannot be applied retroactively to determine the defendant's conviction. In particular, the Supreme Court drew a distinction between criminal statutes and other types of statutes in relation to the retroactive effect of nonconformity with the Constitution decisions. The opinion of the Court states strong persuasive grounds for its decision, and in light of a comparative law viewpoint to this matter, this decision also maintains a highly logical and justified stance.