헌법불합치결정의 소급효와 그 적용범위 - 형벌조항을 중심으로 -

Abstract

No one raised an objection to unconstitutional decision, even though it is stipulated in the law that it should not be made. It has become an object of controversy whether it is possible to temorarily make an unconstitutional decsion in the case of item of punishment even though it is verified to be in violation of the constitution of The Constitutional Court, When is the time that the item of punishment will lose its effect, in the case that the item of punishment is temorarily applied? In other words, when is the time for the effect of retroactivity to happen? What is the applicaton scope of retroactivity?The Constitutional Court may decide that the case is unconstitutional on the ground that it lacks legal stability and respect for legislative rights when the case is simplistically found unconstitutional. In cases which the relevant article has two sides with some parts being constitutional and others being unconstitutional, the law does not have enough force in case there is a breach of equality. The Constitutional Court will also sometimes order to stop applying the decision or will order to temporarily apply the decision without deciding the time limit of improving the legislation. At this time The Constitutional Court sometimes decides that it should be stopped until the legislative person or body does better legislation. In the case that better legislation is not made until the time limit of legislation betterment, the Court sometimes orders that the relevant article loses effect the next day. Under Article 47,Section 2 of The Constitutional Court law,it loses effect in the future the day when the decision of constitutionality is made in case of a non punishment item. However, it loses effect retroactively in the case of a punishment item. It is the problem that the time when the effect of retroactivity will come into force- when the law article will lose its effect whose constitutionality is confirmed in case of the unconstitutional decsion. It is because the effect of retroactivity happens depending on the time when the effect of retroactivity will come into force that it is possible to apply for a retrial. There have been a precedent that it is possible to apply for a retrial immediately on the date that the decision of unconstitutionality is made, based on the fact that its loss of effect equates with the occurrence of the effect of retroactivity. The other is that the effect of retroactivity will come into force the following day that time limit of legislation betterment is passed, in case that time limit of legislation betterment by The Constitutional Court is stipulated in the decision. However the decision by The Constitutional Court is considered reasonable when the obedience of law and the effect of retroactivity will come into force in case that the unconstitutional decsion is admitted under Article 47 of law of The Constitutional CourtTo apply legal item continuously is to betray justice for the securement of legal stability. How can we be in harmony and realize actual constitutionalism by weighing legal stability and justice in a situation which is impossible to give the absolute reason why the law whose constitutionality is confirmed applies continuously for the legal stability?