The Constitutional Court’s decision to cancel the trial of the court that did not accept the retrial by ignoring the binding force even though the ‘limited unconstitutional decision’ was made. It is the second time in history that the Supreme Court has canceled the judgment of the Supreme Court after 1997, reaffirming that the Constitutional Court’s decision to be unconstitutional is the lawful authority of the Constitutional Court, which has been in conflict with the Supreme Court for over 30 years. A limited unconstitutional decision is a decision that, although there is no provision in the Constitutional Court Act, does not say that a certain law or provision of a law is unconstitutional, but judges that it is “in violation of the Constitution as long as it is interpreted as ~”.
Constitutional CourtOn the 30th, a former university professor Mr. A filed a constitutional complaint that Article 68 (1) of the Constitutional Court Act was unconstitutional.(2014 Heonma 760)In the unanimous opinion of all the judges, △In the main text of Article 68 (1) of the Constitutional Court Act, the ‘trial against the binding force of a decision on unconstitutionality of the law’ in the ‘trial of the court’ violates the Constitution (partially unconstitutional) and △Part of the law The court’s decision to deny the binding force of the Constitutional Court’s decision (2011 Heonba 117), which is unconstitutional, was decided to be canceled as it constituted an infringement of the right to request a trial.
Article 68 (1) of the Constitutional Court Act stipulates that ‘A person whose basic rights guaranteed by the Constitution have been infringed upon by the exercise or non-exercise of public power may file a constitutional complaint with the Constitutional Court, except for a court trial. However, if there is a remedy procedure in other laws, a claim may be made after all the procedures have been followed.
In other words, the Constitutional Court can file a constitutional complaint against a trial that does not comply with the Constitutional Court’s decision to be unconstitutional, and the Constitutional Court can cancel a court trial that denies the binding force of the Constitutional Court’s limited unconstitutional decision.
Person A was commissioned as a member of the Jeju Island Integrated Impact Assessment Committee in 2003 and was charged with accepting bribes in connection with her duties as a public official. Mr. A filed a constitutional complaint stating that it is against the Constitution to include judges under local governments in Article 129 (1) of the Criminal Act, which punishes public officials who accept or demand bribes during the appeal trial. Accordingly, in 2012, the Constitutional Court ruled that “public officials” in Article 129 (1) of the Criminal Act included the commissioned members among the deliberation members of the Jeju Special Self-Governing Province Integrated Impact Assessment Review Committee under Article 299 (2) of the former ‘Special Act for the Establishment of Jeju Special Self-Governing Province and Creation of Free International City’. It is in violation of the Constitution as long as it is interpreted as being In response, Mr. A applied for a retrial in 2013, but it was dismissed.
The Constitutional Court said, “The Constitutional Court interprets the constitutional law while examining the constitutionality of the law, and the resultant decision on limited unconstitutionality is also partially unconstitutional. “Because the Constitution grants the Constitutional Court the right to examine the constitutionality of a law, a court trial that denies the binding force of a decision on the constitutionality of a law is not only against the binding force of the Constitutional Court decision itself, but also grants the Constitutional Court the right to examine the constitutionality of the law. It is in direct violation of the decision of the Constitution given to us.”
“In order to protect the supreme norms of the Constitution and to restore the right to examine the constitutionality of laws granted by the Constitution to the Constitutional Court, the scope of ‘judgment of the court’ in the main sentence of Article 68 (1) of the Constitutional Court Act is ‘the binding force of the decision of unconstitutionality of the law’. It is necessary to make an unconstitutional decision that explicitly excludes ‘trials contrary to We declare that the ‘trial against the binding force of the unconstitutional decision’ is in violation of the Constitution.”
He continued, “The decisions to dismiss the retrial in this case deny the binding force of the limited unconstitutional decision and dismiss the petitioners’ request for retrial under the Constitutional Court Act. Accordingly, the constitutional complaint against this is permitted and should be revoked in accordance with Article 75 (3) of the Act, as it violates the right to request a trial guaranteed by the Constitution of the applicants.”
However, “the judgment of the applicants is a judgment confirmed before the limited unconstitutional decision is made, and relief is only possible through the retrial procedure. It cannot be regarded as a trial against the binding force, so it is inappropriate to request a trial against it,” he added.
