[2] [Majority Opinion] In a case where the court below convicted the Defendant of the facts charged that the Defendant held a night outdoor assembly by applying the main text of Articles 23 subparag. 1 and 10 of the Assembly and Demonstration Act, but the Constitutional Court rendered a ruling of inconsistency with the Constitution as to the above legal provisions and urged the legislative improvement, the case holding that the above legal provisions should be retroactively null and void, and thus, the Defendant should be acquitted of the aforementioned prosecuted case where the prosecution was instituted by applying the above legal provisions

[Concurring Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Lee In-bok] In the above case, the case holding that since the above legal provision becomes null and void from the day following the expiration of the above amendment deadline, a judgment of acquittal

(B) In addition, according to Article 111(1) of the Constitution and the main sentence of Article 45 of the Constitutional Court Act, the Constitutional Court may decide and decide only on the constitutionality of the Act or the provisions of the Act, so long as the provisions of the Act on Punishment are decided as unconstitutional, such provisions shall lose their effect as prescribed in the proviso of Article 47(2) of the Constitutional Court Act. Therefore, even if the Constitutional Court continues to apply the provisions of the Act until the amendment of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act or the provisions of the Act

[Concurring Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Lee In-bok] (A) In a case where the Constitutional Court recognizes that any penal provision is unconstitutional, but the constitutional part is mixed, and the possibility of infringing on legal stability that needs to be divided by legislation or causes a simple decision of unconstitutionality is serious, it is inevitable to exclude the application of the retroactive effect pursuant to the proviso of Article 47(2) of the Constitutional Court Act, and where the Constitutional Court orders provisional application of the relevant law until a certain improvement legislation is established and implemented, the court needs to respect the decision of the Constitutional Court as to the constitutional value and balance of interests, and the legitimacy of the exceptional retroactive effect restriction as stated in the Majority Opinion is a kind of decision of unconstitutionality and a penal provision of the decision of unconstitutionality non-unconstitutionality is a penal provision of Article 47(2) of the Constitutional Court Act, and thus, it is not mechanically interpreted that any exception is not permissible.

(B) The decision of inconsistency with the Constitution of the Republic of Korea does not go back to the same state as the first decision of unconstitutional was rendered in a case where the amendment was not made, but does not go to the effect that the legal provision of this case becomes null and void from the day after the deadline for

[2] [Majority Opinion] In a case where the court below convicted the Defendant of the facts charged that the Defendant held an outdoor assembly at night by applying Article 23 subparag. 1 and the main text of Article 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424 of May 11, 2007), but the Constitutional Court rendered a ruling of inconsistency with the Constitution as to the above legal provisions and urged the legislative improvement by setting a deadline for amendment and requesting the above deadline, the case holding that the above legal provisions should be retroactively null and void, and thus, they should be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act as to the above prosecuted case against which the prosecution was instituted by applying the above legal provisions.

[Concurring Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Lee In-bok] In the above case, since the facts charged to hold an outdoor assembly held by the Defendant at night become invalid from the day after the amendment deadline of the above provision, which serves as the basis for the punishment, can be seen as falling under “when punishment is abolished due to the amendment or repeal of the statute after the crime,” the case holding that an acquittal should be pronounced pursuant to Article 32

The Defendants’ assertion in the grounds of appeal is merely an error of law in the misapprehension of legal principles in the judgment below on the premise that the selection of evidence and fact-finding, which belong to the lower court’s full power as a fact-finding court, or on the premise of facts different from the lower court’s finding facts.

2. The decision shall be made ex officio;

A. Of the facts charged against Defendant 1, the lower court upheld the first instance judgment that found Defendant 1 guilty by applying the main text of Articles 23 subparag. 1 and 10 of the Assembly and Demonstration Act (wholly amended by Act No. 8424, May 11, 2007; hereinafter “the Assembly”) and the main text of Article 23 subparag. 1 and Article 10 of the Assembly and Demonstration Act. However, following the pronouncement of the lower judgment, the Constitutional Court rendered a decision that “an outdoor assembly” in Article 10 of the Assembly and Demonstration Act and the main text of Article 10 in Article 23 subparag. 1 of the Assembly and Demonstration Act does not coincide with the Constitution. The foregoing provisions continue to apply until the legislators revised on Jun. 30, 201.” In so doing, the lower court did not render a ruling of inconsistency with the Constitution by the Constitutional Court en banc Decision 2009Hun-Ga4, Jul. 1, 2010.

B. The Constitutional Court's ruling of inconsistency with the Constitution is a modified form that is not stipulated in the Constitution and the Constitutional Court Act but constitutes a ruling of unconstitutionality as to legal provisions [see, e.g., Supreme Court Decision 2004Do7111, Jan. 15, 2009; Constitutional Court en banc Order 2003HunGa1, May 27, 2004; Constitutional Court en banc Order 2004HunGa4, May 4, 2004] Article 23 subparagraph 1 of the Assembly and Demonstration Act provides that the organizer of an assembly shall violate the main sentence of Article 10 subparagraph 1 of the Assembly and Demonstration Act, and the main sentence of Article 10 subparagraph 1 of the Assembly and Demonstration Act is combined with subparagraph 1 of Article 23 subparagraph 2 of the Assembly and Demonstration Act; thus, the ruling of inconsistency with the Constitution as to the above provisions of the Assembly and Demonstration Act (hereinafter referred to as "instant provision") constitutes a judgment of unconstitutionality as to the pertinent provision of Article 250 (1).

In addition, according to Article 111(1) of the Constitution and the main text of Article 45 of the Constitutional Court Act, the Constitutional Court may decide and decide only the constitutionality of the law or the provisions of the law, so long as the provisions of the law on punishment are decided to be unconstitutional, such provisions shall lose their effect as prescribed in the proviso of Article 47(2) of the Constitutional Court Act. Therefore, in a case where the Constitutional Court continues to apply the provisions of the law of this case until the amendment is made, and where the legal provisions of this case are not improved until the amendment is made, among the reasons, until the amendment is made, the amendment is made, there is no room for other interpretation as long as the legal provisions of this case become unconstitutional.

Therefore, the legal provision of this case, which was not amended until the amendment deadline prescribed by the decision of inconsistency with the Constitution, shall retroactively become null and void. Therefore, the accused case by the organizing of the night outdoor assembly, which was instituted by applying the legal provision of this case, shall be acquitted in accordance with the former part of Article 325 of the Criminal Procedure Act.

C. Therefore, among the judgment of the court below, the part convicting Defendant 1 of the facts charged of holding an outdoor assembly at night cannot be maintained as is. The court below rendered a single sentence on the grounds that the above facts charged against the above defendant and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and the judgment of the court below against the above defendant shall be reversed in its entirety.

3. Conclusion

Of the lower judgment, the part against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and all of the remaining Defendants’ appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices, except there is a separate opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Lee In-bok as to the time the legal provision of this case becomes null and void, and a concurrence with the Majority by Justice Ahn Dai-hee, Justice Cha Han-sung, and Justice Lee

4. Concurring Opinion by Justice Ahn Dai-hee, Justice Shin Young-chul, and Justice Lee In-bok as to the period of invalidation

A. The Majority Opinion, despite the premise that the proviso of Article 47(2) of the Constitutional Court Act shall apply to the decision of inconsistency with the Constitution, deemed that the legal provision of this case ought to be retroactively invalidated. However, the Majority Opinion and its purport differ from the Majority Opinion on the timing of invalidation of the legal provision of this case.

B. The main text of Article 45 of the Constitutional Court Act provides that “The Constitutional Court shall only determine the unconstitutionality of the law or the provision of the law proposed.” However, the Constitutional Court shall only choose either one of the unconstitutionality and the constitutionality of the law to be tried, and if it is interpreted that any exception is not allowed, the Constitutional Court shall not make a flexible and flexible judgment that meets the complex and diverse social phenomenon and constitutional situation of modern times. Accordingly, the decision to protect the fundamental rights of the people and carry out the constitutional order may result in a result that the decision to protect the fundamental rights of the people would be harming legal stability or restricting the National Assembly’s sound freedom of legislative formation, thereby preventing the Constitutional Court from fulfilling its duty to protect the fundamental rights of the people by making it difficult for the Constitutional Court to actively decide on the unconstitutionality of the law. In this regard, it is true that the Constitutional Court has already rendered a so-called modified decision, including the decision of inconsistency with the Constitution.

However, even if considering the above special nature of the constitutional adjudication, such a modified decision is not only based on the positive legal basis, but also may infringe upon the power of interpretation granted by the Constitution to the court. Thus, it is difficult to view that the court is entirely bound by the modified decision of the Constitutional Court, and the same applies to the case of the decision of inconsistency with Constitution. This is because, even if the original decision of inconsistency with Constitution falls under a decision of unconstitutionality in essence, if the Constitutional Court made a decision of inconsistency with Constitution as a modified decision in order to avoid the application of Article 47 of the Constitutional Court Act as to the effect of the decision of unconstitutionality, it cannot be deemed as a decision of unconstitutionality within the original meaning as planned under Article 47 of the Constitutional Court Act, and in particular, it is not different from other modified decisions that have no positive legal basis as to the binding effect of the decision of inconsistency with Constitution as it is difficult to

Ultimately, how to understand the validity and meaning of a law or a legal provision applicable to a specific dispute is bound to be within the jurisdiction of a court responsible for resolving specific disputes through the interpretation and application of the law. However, the purport of a declaration of unconstitutionality, which is contained in the decision of unconstitutionality, by respecting as much as possible the intent and opinion of the Constitutional Court as stated in the order and reason of the decision of unconstitutionality as possible, is to be sufficiently examined. Meanwhile, there is a need to seek a harmonious interpretation so that the Constitutional Court may not cause legal gap or infringe on legal stability, which is likely to be caused by the decision of unconstitutionality as a result of the decision of unconstitutionality. This is because our constitutional order is divided into the courts and the Constitutional Court with the responsibility of guaranteeing the fundamental rights of the people and protecting the legal order, requesting both the courts and the Constitutional Court to cooperate on the basis of the spirit of mutual respect, and the two institutions will be able to fulfill the constitutional responsibility given to each person. This is also derived from this constitutional request.

C. The exceptional necessity of the above decision of inconsistency with the Constitution is not different from that of a penal provision. Of course, it is too urgent to punish citizens as unconstitutional penal provision. In this purport, the proviso of Article 47(2) of the Constitutional Court Act provides that the law or provisions of a law on punishment decided as unconstitutional shall lose its effect retroactively, and Article 47(3) of the Constitutional Court Act provides that a request for a retrial may be made with respect to a conviction based on the law or provisions of a law decided as unconstitutional.

However, penal provisions are based on the concept and value system of society, and the legitimacy and scope of punishment are inevitably affected by the dynamic change or development of each area of politics, society, economy, and culture of the State. In addition, since the National Assembly failed to respond appropriately to these changes, there is a need for the Constitutional Court to declare the unconstitutionality of a penal provision, even in cases where the changed constitutional reality is inconsistent with the changed constitutional reality. However, in such a case, the Constitutional Court's decision of unconstitutionality becomes retroactively effective at the time of the enactment of a law without exception, and accordingly, if all persons who received a final conviction based on the above penal provision are granted a verdict of not guilty by permitting a new trial without exception, this would not only completely deny the historical reality of the past and may not avoid confusion caused by the legal gap that occurred until legislation to improve the unconstitutionality is prepared, and if the Constitutional Court examines what penal provision is unconstitutional, it can be recognized that the Constitutional Court has its responsibility to declare the unconstitutionality of a new constitutional right in the first time throughout the period from the enactment of the past penal provision to the past.

Therefore, in cases where the Constitutional Court recognizes that certain penal provisions are unconstitutional in the above consideration, but the constitutional parts are mixed, and thus, it is inevitable to exclude the application of retroactive effect under the proviso of Article 47(2) of the Constitutional Court Act, which is not a decision of inconsistency with the Constitution but a decision of inconsistency with the Constitution, and orders provisional application of the relevant laws until a certain improvement legislation is established and implemented, the court also needs to respect the decision of the Constitutional Court on the constitutional value and balance of interests, and the decision of the Constitutional Court is a kind of constitutional decision of inconsistency with the Constitution and a penal provision that is subject to the decision of inconsistency with the Constitution, and as such, the retroactive effect is recognized according to the proviso of Article 47(2) of the Constitutional Court Act, and any exception is not strictly interpreted as not allowing the application of the proviso of Article 47(2) of the same Act.

D. Meanwhile, it is necessary to examine the attitude that the Supreme Court has taken place in relation to the interpretation of the main sentence of Article 47(2) of the Constitutional Court Act. The main sentence of Article 47(2) of the Constitutional Court Act provides that where a law or a provision of a law is not related to punishment and is unconstitutional, it shall lose its effect from the date of the decision of unconstitutionality. However, the Supreme Court has previously rendered a decision of unconstitutionality taking into account the aspects that it guarantees the effectiveness of specific norm control in the adjudication of unconstitutionality before the decision of unconstitutionality, and the case where the Constitutional Court has made a request to the Constitutional Court or made a request for a ruling of unconstitutionality before the decision of unconstitutionality was made, and the case where the law or provision of a law has not been separately requested for a ruling of unconstitutionality, but also the general case instituted after the decision of unconstitutionality has been made after the decision of unconstitutionality, it has been interpreted that the retroactive effect of the decision of unconstitutionality may not be restricted or, even after this case, 97(197).5).

As such, the attitude of the Supreme Court is related to a non-criminal law that is at issue in the application of the main sentence of Article 47(2) of the Constitutional Court Act, so it does not directly apply to the case of this case where the application of the proviso of the same paragraph as a penal law is at issue. However, it can find an essential common point in that there is no uniform and strict standard as to whether to recognize the retroactive effect of the decision of unconstitutionality and the scope thereof.

E. Although the ruling of inconsistency with the Constitution declares that the provision of this case does not conform with the Constitution, the provision of this case continues to apply until the National Assembly is amended on June 30, 2010. In light of the reasoning of the ruling, since the provision of this case includes both unconstitutional and unconstitutional parts, the provision of this case is more effective than immediately lose its effect and has the National Assembly maintain its effect temporarily until the time limit for the amendment. Considering all the circumstances, the time zone during which the outdoor assembly is prohibited can be set up reasonably in order to respect the decision discretion of the National Assembly, thereby allowing the National Assembly to eliminate the unconstitutionality of the provision of this case. In addition, the ruling of inconsistency with the Constitution of this case becomes effective from July 1, 2010 so that the purport of the declaration of unconstitutionality does not go against the above provisional provision, and thus, the provision of this case becomes null and void as of July 1, 2010.

Such determination by the Constitutional Court cannot be deemed constitutional in light of the current situation, the current situation, the level of political and social development, and the degree of maturity of the Republic of Korea. However, in the past Constitutional Court en banc Decision 91Hun-Ba14 Decided April 28, 1994, the Constitutional Court declared that the provision prohibiting night outdoor assembly was constitutional, and the court has declared that a number of trials have been rendered in the past for several months on the premise of its constitutionality during several hundred and twenty years, taking into account the disturbance of legal stability, damage to people’s trust in legal order, and burden of judicial proceedings. Even if a simple decision of unconstitutionality is not made, punishment shall be excluded for the night outdoor assembly which is recognized as legitimate through establishment of reasonable criteria of the next National Assembly. Even if the National Assembly did not enact any improvement legislation, even if the National Assembly does not take a legislative measure, the full possibility of criminal punishment is extinguished through the invalidation of legal effect, the subsequent decision of acquittal, and thus, the purport of the Constitutional Court declaring that the freedom of assembly or assembly should be realized under the premise of the Constitution.

F. As such, while the Constitutional Court ruled that the provision of this case violates the Constitution through the decision of inconsistency with the Constitution, it shall exclude retroactive effect pursuant to the proviso of Article 47(2) of the Constitutional Court Act, and make it null and void from July 1, 2010, the following day after the deadline for the improvement of the legislation. As such, the facts charged by Defendant 1 on the charge of holding an outdoor assembly at night with Defendant 1 shall be deemed to fall under “when the sentence is repealed by the law after the crime was committed,” since the legal provision of this case, which serves as the basis for the punishment, becomes null and void from July 1, 2010, and thus, it shall be acquitted prior to a substantive trial pursuant to Article 326 subparag. 4 of the Criminal Procedure Act.

Therefore, I agree with the majority opinion that the judgment of the court below against the above defendant should be reversed, but I express my separate opinion because there are different reasons for reversal as seen above.

5. Concurrence with the Concurring Opinion by Justice Ahn Dai-hee

A. The Majority Opinion construed the decision of inconsistency with the Constitution as a decision of unconstitutionality on the legal provisions of the Act on Punishment, and thus, as the legal provisions of this case become retroactively null and void pursuant to the proviso of Article 47(2) of the Constitutional Court Act, it shall be deemed that a judgment of innocence should be rendered on the charges of applying the legal provisions of this case. However, such interpretation theory by the Majority Opinion is contrary to the objective purport of the decision of inconsistency with the Constitution, and there is room to regard it as an interpretation beyond the provisions of the Constitution and the Constitutional Court Act, and above all, it is likely to undermine the legal stability and peace, which

B. In the instant decision of inconsistency with the Constitution, the Constitutional Court has five opinions that the legal provisions of this case are unconstitutional, and two opinions that are inconsistent with the Constitution are inconsistent with the Constitution, and even though the simple unconstitutional opinion is less than six, if the opinion of inconsistency with the Constitution is added up to the opinion of inconsistency with the Constitution, the legal provisions of this case do not coincide with the Constitution, but it does not coincide with the Constitution, but the National Assembly has continued to apply the legal provisions of this case before the amendment was made on or before June 30, 2010, and if the amendment was not made by the above date, the legal provisions of this case were invalidated from July 1, 2010. Meanwhile, since the purport of the above two parties’ opinion of inconsistency with the Constitution exists in addition to the unconstitutional part of the legal provisions of this case, it is evident that the entire law provisions of this case will be divided and applied until then by the amendment legislation.

However, according to Article 113(1) of the Constitution and Article 23(2)1 of the Constitutional Court Act, in order to make a decision of unconstitutionality of a law, there must be a consent of six or more Justices. In order to make a decision of unconstitutionality in light of the importance of the decision of unconstitutionality, there is a need to agree with the six or more judges who explicitly agreed that the decision of unconstitutionality is either formally or formally or formally. In the instant case of the decision of unconstitutionality of a law of unconstitutionality, there is a lack of room to regard that the decision of unconstitutionality of a law of unconstitutionality of a case is only five of the opinion of unconstitutionality and thus, it is difficult to deem that the requirements of unconstitutional

C. The Constitutional Court rendered a ruling of inconsistency with the Constitution on the main sentence of Article 6 (1) 2 of the School Health Act (see Constitutional Court en banc Decision 2003Hun-Ga1, 2004Hun-Ga4, May 27, 2004). The Supreme Court has interpreted it as a simple decision of inconsistency with the Constitution (see Supreme Court Decision 2004Do7111, Jan. 15, 2009). However, the above decision of inconsistency with the Constitution of the Republic of Korea has a unanimous opinion by all the Justices on the fact that the part concerning each school under Article 2 of the Elementary and Secondary Education Act violates the Constitution by infringing on fundamental rights, and further, the above provision should be immediately suspended in order to prevent any inconsistency following a simple decision of inconsistency with the Constitution while taking the form of a ruling of inconsistency with the Constitution on the grounds that the above provision is unconstitutional and applied under the unconstitutional law. In this regard, the above decision of inconsistency with the Constitution cannot be applied to a certain case without regard to the interpretation and application of this case.

D. Next, against the explicit opinion of the Constitutional Court ordering the continuation of the legal provisions of this case, interpreting that the provision becomes retroactively null and void on the ground that the legal nature of the ruling of inconsistency with the Constitution becomes unconstitutional as to the legal provisions of this case on the grounds that the legal nature of the ruling of inconsistency with the Constitution becomes unconstitutional, is practically denied, and under our legal system that does not have a legal system to resolve the difference between the Constitutional Court and the Supreme Court, there is a concern for confusion between the two agencies as well as the legal persons. Although the court with the authority to interpret and apply the legal provisions is not entirely bound to the ruling of inconsistency with the Constitution and does not have independent interpretation, and even if the Supreme Court does not deny its validity itself and accepts the decision of inconsistency with the Constitution and the law as part of the Constitutional Court, so long as the Supreme Court does not faithfully interpret the purport of the decision, the right to examine the constitutionality should be respected, and the legal binding effect of the Constitutional Court and the Constitutional Court shall be able to prevent the legal confusion.

E. As above, the fundamental difference between the majority opinion and the separate opinion in the interpretation of the decision of inconsistency with the Constitution is whether the decision is retroactively applied. According to the majority opinion, the whole final and conclusive judgment rendered pursuant to the legal provisions of this case is subject to retrial. However, such interpretation is likely to impair the basic principles of a rule of law in that the legal peace is substantially infringed and all the past judgments based on the law are considered to be retroactively wrong. Furthermore, according to the majority opinion's logic, even if the decision of the Constitutional Court in this case is recognized as maintaining its validity and applied to the decision of the previous decision of inconsistency with the Constitution, the decision of the Constitutional Court in this case cannot be treated as a judgment of unconstitutionality and invalid regardless of the existence or non-existence of the improvement of the law, regardless of the existence or non-existence of the improvement of the law. However, in light of the above, it is evident that the decision of the Constitutional Court in this

Rather, if the purport of the Constitutional Court’s ruling of inconsistency with the Constitution is objectively interpreted as stated in its text and reasoning, it is reasonable to deem that the above provision of the Constitutional Court Act was constitutionally interpreted in light of the problems that may arise in cases where the provisions of the Constitutional Court Act that recognized the retroactive effect of the decision of unconstitutionality as to the penal provisions and the circumstances where the Constitutional Court en banc Order 91Hun-Ba14 Decided April 28, 1994 declared the provision prohibiting night outdoor assembly at night to be constitutionality. Such interpretation of the Constitutional Court is one of the basic principles directed by the rule of law as well as fundamental rights. Such interpretation is acceptable in that it is difficult to recognize the retroactive effect of the Constitutional Court’s ruling of inconsistency with the Constitution as the infringement of legal stability, unless it is extremely exceptional that the former law or its interpretation seems to be legally unlawful.

F. The Constitutional Court’s ruling of inconsistency with the Constitution, as the majority opinion, recognizes retroactive effect as to the instant legal provision against the explicit intent of the Constitutional Court, means interpreting and declaring that all the application of the instant legal provision is null and void from its own perspective, without considering the constitutional reality, such as changes in times and various characteristics of laws, etc.

6. Concurrence with the Majority by Justice Cha Han-sung and Justice Lee Sang-hoon

A. As pointed out in the Concurring Opinion, the so-called modified decision including the decision of inconsistency with the Constitution, even if considering the special nature of the constitutional adjudication, is without legal basis, and can be said to have infringed on the authority to interpret and apply the statutes granted to the court. As such, the court is difficult to view that it is entirely bound by the Constitutional Court’s decision of inconsistency with the Constitution. Meanwhile, there is a need to exceptionally limit the retroactive effect of the decision of unconstitutionality on penal provisions. However, the proviso of Article 47(2) and Article 47(3) of the Constitutional Court Act explicitly stipulate the retroactive effect of the decision of unconstitutionality on penal provisions and the right to request a retrial accordingly, and it is difficult to allow the Constitutional Court’s decision or interpretation of the decision to limit the retroactive effect and the right of the defendant’s retrial by the Constitution and the criminal law system declaring the principle of unconstitutionality. Accordingly, it is inevitable to resolve it by legislation (see Supreme Court Decision 2010Do5605, Apr. 14, 2011).

The Constitutional Court or the Constitutional Court may perform its constitutional duties in accordance with the Constitution and laws. Notwithstanding the express proviso of Article 47(2) of the Constitutional Court Act, interpreting the same as the separate opinion does not constitute a possible question before the Constitutional Court’s decision that the above provision is unconstitutional. If a living provision with real necessity is unable to be capable, and if it is necessary to resolve unreasonable or confusion due to legal provisions, it is not a share of the National Assembly or the Constitutional Court’s decision.

In addition, considering the substantial limitation of fundamental rights of the State, in order to realize the principle of no punishment without the law, the contents of the law that prescribes crimes and punishments must coincide with the constitutional value system. An order to continue to apply penal provisions that have already been determined as unconstitutional through a ruling of inconsistency with the Constitution from the time of rendering a ruling of inconsistency with the Constitution to the time of legislative amendment is difficult to be justified constitutionally because it does not purport to maintain the existing order even if it is applied provisionally. In addition, in a case where, like the ruling of inconsistency with the Constitution of this case, a court declares the unconstitutionality of the provisions of the law on punishment and orders to continue to apply the provisions on the grounds that they have both unconstitutional and constitutional parts, such as the ruling of inconsistency with the Constitution, even though it declares the unconstitutionality of the provisions on the punishment, it cannot be clearly known that the general public is unconstitutional or unconstitutional, and thus, it is against the principle of clarity requested by the principle of no punishment without the law. In particular, after the application of the provisions on the punishment provisions on the law, it is difficult to recover the parties to be subject to the invalidation.

Therefore, although the court does not oppose the separate opinion that respect the judgment and decision of the Constitutional Court, it is difficult to accept the same content as the decision of inconsistency with the Constitution of this case as the decision of inconsistency with the Constitution of this case, and to recognize the effect of the decision of inconsistency with the Constitution of this case as well as the decision of inconsistency with the Constitution of this case.

B. Notwithstanding the main text of Article 47(2) of the Constitutional Court Act that provides for the effect of the decision of unconstitutionality as to a non-criminal provision, the Supreme Court has pointed out the separate opinion that exceptionally recognizes the retroactive effect of the non-criminal provision in certain cases. However, such circumstance alone does not necessarily mean that the retroactive effect of the decision of unconstitutionality as to a penal provision may be exceptionally restricted in interpretation, notwithstanding the proviso of Article 47(2) of the Constitutional Court Act that provides for the effect of the decision of unconstitutionality as to a penal provision. This is because recognizing the retroactive effect of the decision of unconstitutionality as to a non-criminal provision differs from denying the retroactive effect of the decision of unconstitutionality as to a penal provision. In order to guarantee the effectiveness of specific normative control in a judgment of unconstitutionality, the case in which the decision of unconstitutionality was made, or before the decision of unconstitutionality was made, a request for adjudication of unconstitutionality has not been made, but it cannot be recognized that the retroactive effect of the defendant's basic right and the right to request a new trial after the decision of unconstitutionality becomes justified.

C. The Concurring Opinion argues that the decision of inconsistency with the Constitution does not go back to the same state as the first decision of unconstitutionality in a case where the legislative amendment has not been made, but rather the legal provision of this case becomes null and void from July 1, 2010, the day following the expiration of the time limit for the amendment of the Constitution. However, even if respecting the purport of the Constitutional Court’s decision, it is doubtful whether the purport of the decision of inconsistency with the Constitution of this case can be readily concluded as above. Rather, the decision of inconsistency with the Constitution of this case can be interpreted to the effect that if the legislative amendment is made by allowing the National Assembly to eliminate the unconstitutional elements of the legal provision of this case only for a certain period of time, if the legislative amendment is made by allowing the National Assembly to apply the improvement legislation favorable to the defendant, and if the legislative amendment is not made by the time limit, all of the provisions of this case including the constitutional provisions becomes null and void retroactively. If the purport of the decision of inconsistency with the Constitution of this case is interpreted as such, the legal provision of this case becomes retroactively null and void.

In addition, the Concurring Opinion states that the Constitutional Court has declared that provisions prohibiting outdoor assembly at night was constitutional in the past and that a number of trials were conducted on the premise of its constitutionality, and the decision of inconsistency with the Constitution is made by taking into account the disturbance of legal stability, prejudice to people’s trust in legal order, and the burden of judicial proceedings. However, the grounds for the decision of inconsistency with the Constitution are consistent with the unconstitutional and constitutional provisions of the instant legal provisions, and there are only the contents that the National Assembly shall make the decision of inconsistency with the Constitution to reasonably set the time zone during which the outdoor assembly is prohibited by considering all the circumstances, and there is no reason to deem that the decision of inconsistency with the Constitution should be made by considering the circumstances asserted by the Concurring Opinion

In addition, the decision of inconsistency with the Constitution to regard the legal provisions of this case to be null and void in the future from the day after the time when the amendment was made if the legislative amendment was not made. It does not lead to the misunderstanding that the legal provisions of this case are constitutional and effective until the time when the amendment was made, even though the legal provisions of this case were declared unconstitutional in the decision of inconsistency with the Constitution of this case, and thus, it can be said that the decision of inconsistency with the Constitution of this case becomes constitutional.

D. Article 326 of the Criminal Procedure Act provides only four cases where “when a final judgment is rendered, amnesty is made, when the statute of limitations expires, and when a sentence is repealed due to the repeal or repeal of statutes after an offense,” and does not provide cases where a statutory provision is declared unconstitutional. In addition, where a statutory provision on a punishment becomes invalid due to a decision of unconstitutionality, it does not constitute a case where a sentence is repealed due to the repeal or repeal of statutes after an offense. This is the established case of the Supreme Court. The abolition of a sentence due to the repeal of statutes that fall under the grounds for acquittal does not mean a case where a law ceases to exist and is repealed, and it does not mean a case where a law ceases to exist and has been abolished. The argument that the Constitutional Court’s decision should be ruled that a judgment of acquittal is not based on an interpretation that is not based on Article 326 of the Criminal Procedure Act. In addition, it can be deemed that the same effect as the Constitutional Court’s decision on a unconstitutionality becomes effective.

In this respect, the accused case which was prosecuted by applying the legal provisions of this case must be acquitted, not acquitted.

E. The Constitutional Court’s ruling of inconsistency with the Constitution becomes final and conclusive upon deliberation. Although the text of the ruling is based on a minority opinion, it is no longer possible to see it. However, there is no theory to regard the essence of the ruling of inconsistency with the Constitution as unconstitutional. Therefore, the instant ruling of inconsistency with the Constitution as unconstitutional does not err in granting the same effect as the ruling of inconsistency with the Constitution as unconstitutional. If the ruling of inconsistency with the Constitution becomes binding upon the Constitution and the law without any legal basis, the ruling of inconsistency with the Constitution should be established on the premise that the ruling of inconsistency with the Constitution is a final and conclusive decision of unconstitutionality. Thus, if the legal opinion of the instant ruling of inconsistency with the Constitution is based on the opinion of inconsistency with the Constitution, which is a minority, and it is not possible to grant the same effect as the ruling of unconstitutionality as the ruling of inconsistency with the Constitution, the next part of the ruling of inconsistency with the Constitution cannot have a binding force.

In addition, if the method of decision of unconstitutionality does not have a different form, and it is interpreted that the expression of the text of the decision was simply a unconstitutionality, or that its contents are unconstitutional, the decision becomes effective pursuant to Article 47 of the Constitutional Court Act as the decision of unconstitutionality, and it does not change with the decision of unconstitutionality on the ground that there is an order other than the declaration of unconstitutionality.

Recognizing the binding effect of the decision of inconsistency with the Constitution of this case on penal provisions, it is clear that it is against the Constitution and the Constitutional Court Act to recognize the effect other than the effect of the decision of unconstitutionality.

Chief Justice Park Si-hwan (Presiding Justice)