과거사 청산 입법의 위헌성

Abstract

Article 13 of the Constitution prohibits criminal punishment, deprivation of property rights, and deprivation of political rights through retroactive legislation(ex post facto law). The Anti-National Behavior Investigation Act enacted in 2004 and the Pro-Japanese Property Forfeiture Act enacted in 2005 are typical retroactive legislations. Since the founding of the Republic of Korea in 1948, our society has taken measures such as criminal punishment, confiscation of property, and restrictions on the appointment of public officials against anti-national behaviors under the Anti-National Behavior Punishment Act, which was implemented retroactively based on Article 101 of the Founding Constitution. The Anti-National Behavior Investigation Act and the Pro-Japanese Property Forfeiture Act originated from the allegation that the dealings with the collaborators through punishment of Anti-National Behavior Punishment Act in 1948 was not sufficient. Honorary punishment under the Anti-National Behavior Investigation Act and confiscation of the property under the Pro-Japanese Property Forfeiture Act have no Constitutional basis. Despite this, the Constitutional Court ruled that both the Acts were constitutional based on the spirit of the ‘March 1st Movement’ or the ‘legal tradition of the Provisional Government’ in the preamble to the Constitution. Such a judgment, which grants excessive normative power to the preamble of the Constitution and ignores the fundamental rights provisions of the Constitution, exceeds the authority of the Constitutional Court in interpreting the Constitution. During Korea’s colonial era of 35 years under Japan, there were not any serious armed conflict between two countries. The allegation that Korea’s handling of past history was insufficient compared to that of France does not fit the context. On the other hand, even in the case of belligerent countries, amnesty is widely granted over time. In Korea, however, the scope of anti-national behaviors seems to be expanding over time. The Constitutional Court needs to declare the Anti-National Investigation Act and the Pro-Japanese Property Forfeiture Act unconstitutional.