법원의 위헌법률판단권

Abstract

Our Constitution Article 107(1) provides “When the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof” So the constitutionality of a law belongs to the jurisdiction of the Constitutional Court. The constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof. But Court may exercise judgement-power of the constitutionality of a law of itself without requesting a decision of the Constitutional Court, and so have been doing. That theory and practice is based on the Constitution Article 101(1) “Judicial power shall be vested in courts composed of judges”, Article 103 “Judges shall rule independently according to their conscience and in conformity with the Constitution and laws”, and the Constitutional Court Act Article 47 (2) “Any statute or provision thereof decided as unconstitutional shall lose its effect from the date on which the decision is made” We may classify above-said cases into five categories. ① when the Constitutional Court ruled unconstitutional only on the old law not including the new law, Court may have judgement-power of the constitutionality of the new law of itself without requesting to the Constitutional Court, ② only when minor wordings habe been changed without changing of the content, ③ when Constitutional Court ruled unconstitutional not on the whole but on one provision among some provisions or clauses, ④ whereas the Constitutional Court ruled a law did not conform to the Constitution, and ordered temporary application, but in case court reject the ruling, and ⑤ in case court rules a certain interpretation of law is not in conformity of constitution and so rejects that interpretation which is decided constitutional by the Constitutional Court.