Case on Not Recognizing Retroactivity of an Unconstitutional Decision

[20-2(A) KCCR 488, 2006Hun-Ba108, September 25, 2008]

This case concerns Article 47 Section 2 of the Constitutional Court Act, which does not recognize retroactivity of a decision invalidating a statute other than criminal statutes. The Constitutional Court ruled that the provision in question did not violate the Constitution.

Background of the Case

On September 25, 2003, the Constitutional Court ruled unconstitutional provisions of the former Public Officials Pension Act providing for suspension of pension benefits during the period when a pension receiver has a certain source of income. However, the Government Employees Pension Service did not pay the full pension to the petitioners on the ground that despite the unconstitutional decision of the Constitutional Court, such decision did not have the retroactive force. At this, the petitioners lodged a lawsuit requesting the payment of full retirement pensions on September 8, 2004. While the lawsuit was pending, they filed a motion to request for a constitutional review of the statute, claiming that Article 47 Section 2 of the Constitutional Court Act (hereinafter the "Provision") was unconstitutional. However, the court denied the motion. At this, the petitioners filed this constitutional complaint with the Constitutional Court.

Summary of Decision

In an 8 to 1 opinion, the Constitutional Court ruled that the Provision was not in violation of the Constitution. The reasons are as follows.

1. Majority opinion

A.Whether to apply retroactivity to the statutes ruled unconstitutional by the Constitutional Court or to make it lose effect from the time of announcement is not a matter of an constitutional

conformability rather it is a matter of legislative policy that the legislature should decide by taking into consideration of relevant interests, such as legal stability and protection of individual rights, unless there outstanding circumstances exist. Through the Provision in question, the legislators have chosen to favor legal stability over other benefits, with the exception of criminal statutes. Even if this means there may be some sacrifice to justice in a specific case or principle of equality in this regard, it can be justified from the perspective of legal stability and principle of protection of expectation interests, which originate from the idea of rule of law in the Constitution; therefore, unless extraordinary circumstances exist, the Provision does not violate the Constitution.

B.However, due to the diverse effects of a decision of unconstitutionality, limited retroactivity in exceptional cases must be recognized. First, for the following cases, retroactivity must be recognized: the current case which brought a motivation for reviewing the constitutionality of the provision, through the ordinary court's request to the Constitutional Court for review of constitutionality and the petitioner's filing a constitutional complaint with the Constitutional Court while the current case is pending cases in which the petitioners filed a motion to request for a constitutional review of the same type prior to the decision of unconstitutionality; and cases where no separate constitutionality review has been requested but the provision or statute is the premise on which the decision is being judged in the court.

Second, retroactivity can be recognized when there is an apparent need for relief of individual's rights, less concern for harming legal stability. In addition, retroactivity can also be recognized when the vested interests given by the former law raises no concern of being harmed, and the denial of retroactivity would rather hurt the justice and equality of the society.

2. Dissenting opinion of one Justice

Considering the supremacy of the Constitution and the purpose of the constitutional review of statutes, it would be rational to suppose

that a statute ruled unconstitutional by the Constitutional Court is in conflict with the Constitution and therefore void, from the moment of enactment, unless extraordinary circumstances exist.

When interpreted in context, Article 47 Section 2 of the Constitutional Court Act states in principle, unconstitutional laws lose effect after the ruling is made, and not reciprocally; as an exception, it states criminal laws. This is not in line with the purpose of having the system of constitutional review, which is meant to confirm the supremacy of the Constitution.

In cases where protecting legal stability is so great that it exceeds the need to uphold the supremacy of the Constitution, such as when the legal relations on the basis of the unconstitutional law has already been formed before the decision of unconstitutionality is made, retroactivity may be limited. However, the setting of such limits should be the responsibility of National Assembly.

The Provision at issue denies retroactivity of unconstitutional statutes without considering whether the need to protect legal stability is greater than the supremacy of the Constitution. Therefore, it would be appropriate to declare that it does not fall in line with the Constitution's intention of confirming the supremacy of the Constitution through the constitutional review system. It would be appropriate to call for an improved legislation, which distinguishes where retroactivity is recognized and where it is not.