[위헌심판제청][미간행]
Whether a complaint, reappeal, or special complaint may be filed against a decision to dismiss an application for unconstitutionality (negative)
Article 107(1) of the Constitution of the Republic of Korea; Article 41(1) and (4) of the Constitutional Court Act; Article 68(2) of the Constitutional Court Act; Articles 439, 442, and 449 of the Civil Procedure Act
Supreme Court Order 93Da34 dated August 25, 1993 (Gong1993Ha, 2728) Supreme Court Order 2008Da4 dated January 19, 2009
Special Appellants
Seoul Central District Court Order 2014Kaga4698 dated August 18, 2014
The special appeal shall be dismissed.
Article 41(4) of the Constitutional Court Act provides that an appeal may not be filed against the decision of the court below that dismissed a request for an adjudication on the constitutionality of a special appellant. However, Article 68(2) of the same Act provides that when a request for an adjudication on the constitutionality of a statute of limitations is dismissed, the party who filed the request may file an adjudication on constitutional complaint with the Constitutional Court. Thus, a request for an adjudication on the constitutionality of a statute of limitations may not be filed against a decision to dismiss a request for an adjudication on the constitutionality of a statute of limitations.
Meanwhile, as the court in charge of the judgment should conduct an ex officio examination on which law, which is the premise of the judgment, is unconstitutional, if a party files an appeal on the merits of the case, whether the law is unconstitutional or not must be independently deliberated and judged by the appellate court. Thus, a decision to dismiss an application for unconstitutionality is unlawful as it has the nature of an intermediate judgment, which is subject to an appellate trial, along with a final judgment on the merits, and does not constitute a decision that cannot be subject to a special appeal (see, e.g., Supreme Court Order 93Da34, Aug. 25, 1993; Supreme Court Order 2008Da4, Jan. 19, 2009). Therefore, the special appeal in this case is unlawful as it is against a judgment that cannot be subject to a special appeal.
Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee In-bok (Presiding Justice)