형벌법규에 대한 위헌‧불합치결정의 효력

Abstract

One of the punishment regulations comes to a conclusion as if it violates the constitution, it will nullify the effects of law retroactively. Even in this case, if there has been a previous decision of “Constitutional", range of retroactive effects should be limited to the day after the last constitutional decision, as in the case of unconstitutional decisions. Then the case which is convicted guilty after the day of constitutional decision, but caused the day before the day of constitutional decision should be dismissed because it has been found guilty in the act of doing, so it could be regarded same as the case that "a criminal act became innocent due to the alterations to law"(prescribed in clause 2, article 1, criminal code). If the decision of “Unconformable to Constitution”(Decision of Unconformable) is made on the one of the punishment regulations, decision of "Constitutional unconformable temporarily suspended" should be interpreted as that the regulations is nullify(invalid) like the decision of “Unconstitutional”, but decision of "Constitutional unconformable continuative applied" as not nullify(invalid). Because it is possible to apply the clause during the legislative grace period for the amendment. When the law is amended during the legislative grace period, the unconstitutional parts of the clause should be regarded as removed and remaining parts being reduced should be considered to having been maintained. If this case is considered retroactive invalid, there is no benefit of continuative application. On the other hand, if no amendment was made during the legislative grace period for legislative improvement, it would be invalid retroactively. Even in this case, if there has been a previous decision of “Constitutional", range of retroactive effects should be limited to the day after the last constitutional decision, as is the case with the unconstitutional decision.