In a case where the amendment of the legal provision is merely a mere alteration of the wording only, and the identity of the legal provision before and after the amendment remains intact, whether the effect of the decision of unconstitutionality on the “the previous legal provision” as to the “the previous legal provision also affects the “the amended legal provision” (affirmative)

In a case where the amendment of a certain legal provision is merely a mere formally changed, and there is no change in the meaning of the legal provision itself before and after the amendment, and there is no room to interpret the amended legal provision in a systematic interpretation different from that of another provision of the relevant Act or other relevant Acts, and the identity of both parties is maintained as it is, the effect of the decision of unconstitutionality on the "the former legal provision" as to the "the former legal provision shall also extend to the "the amended legal provision" even if the amended legal provision is not indicated in the text thereof.

However, in a case where there exists a decision of unconstitutionality on “the amended legal provision” as to “the amended legal provision, even though the amendment is merely a form of mere alteration, and thus, practical consistency is recognized between the two provisions before and after the amendment, the effect of the decision of unconstitutionality on “the amended legal provision” cannot be said to extend to “the former legal provision.” The reasons are as follows.

① Even if a penal provision of the same content is a penal provision, the assessment of unconstitutionality may vary depending on changes in the times and social situation and changes in the general sense of society, in a case where the time limit to regulate the same legal provision extends over a considerable period of time. Therefore, even if the penal provision declared unconstitutional at a certain time by the Constitutional Court, it cannot be said that it was originally unconstitutional, and it is more true if the Constitutional Court made a decision of constitutionality in consideration of the legal sentiment of the party and the present situation at any time in the past.

Nevertheless, if a decision of unconstitutionality on “the amended legal provision” as it is deemed that the content of the legal provision before and after the amendment is substantially identical has an effect on “the former legal provision before and after the amendment,” it may be deemed that the constitutional enforcement of the legal provision formed under the former legal provision will be followed for a long time and may result in a violation of the trust and legal stability of the members of society.

② Article 47(3) of the Constitutional Court Act provides that “If a case is previously decided to be constitutional with respect to the pertinent provision, the former provision becomes retroactively null and void as of the date following the date on which the decision of unconstitutionality is made, it shall lose its effect retroactively to the date on which the decision of unconstitutionality is made” under the proviso of Article 47(3) provides that “if a case is decided to be constitutional with respect to the relevant provision, it shall lose its effect retroactively to the date on which the decision of unconstitutionality is made, it shall be recognized that the retroactive effect of the decision of unconstitutionality is limited by recognizing the effect of the decision of unconstitutionality to the date on which the decision of unconstitutionality is made, thereby protecting social trust and legal stability with respect to the norm that has been accumulated until the date on which the decision of unconstitutionality is made. In addition, the Constitutional Court shall limit the retroactive effect of the decision of unconstitutionality to the date on which the decision of unconstitutionality is made.”

Considering the normative meaning of a decision of constitutionality on the legal provisions of punishment, the significance of the Constitutional Court’s decision of confirmation of the subject matter of adjudication of constitutionality, and the intent of the division of constitutional authority between the court and the Constitutional Court, a court cannot make any different judgment on “pre-amended legal provisions” where the Constitutional Court made a decision of constitutionality, and this also applies where the Constitutional Court declares that it changes the previous opinion of constitutionality on “pre-amended legal provisions” on the grounds of the decision of constitutionality on “the amended legal provisions.”

Article 47(3) and (4) of the Constitutional Court Act

Supreme Court Decision 2014Do5433 Decided August 28, 2014 (Gong2014Ha, 1955)

Defendant

Defendant

Seoul Eastern District Court Order 2015No8 dated June 25, 2015

The reappeal is dismissed.

The grounds for reappeal are examined.

1. Where an amendment to a certain legal provision is merely a mere formality of the wording and there is no change in the meaning and content of the legal provision itself before and after the amendment, and there is no room to interpret the amended legal provision in a systematic interpretation different from that of another provision of the pertinent Act or other relevant Acts, and the identity of both parties is maintained as it is, the effect of the decision of unconstitutionality on “the former legal provision” as to “the former legal provision” shall also extend to “the former legal provision even if the amended legal provision does not state it on its original text (see Supreme Court Decision 2014Do5433, Aug. 28, 2014).

However, in a case where there exists a decision of unconstitutionality on “the amended legal provision” as to “the amended legal provision, even though the amendment is merely a form of mere alteration, and thus, practical consistency is recognized between the two provisions before and after the amendment, the effect of the decision of unconstitutionality on “the amended legal provision” cannot be said to extend to “the former legal provision.” The reasons are as follows.

A. Even if a penal provision of the same content is a penal provision, the evaluation of the unconstitutionality may vary depending on changes in the times and social situation and changes in the general sense of society, in a case where the time limit applicable to the legal provision extends over a considerable period of time. Therefore, even if the penal provision declared unconstitutional at a certain time, it cannot be said that it was originally unconstitutional, and it is more true if the Constitutional Court made a decision of constitutionality in consideration of the legal sentiment of the party and the present situation at any time in the past.

Nevertheless, if a decision of unconstitutionality of a legal provision before and after the amendment is deemed to have substantially identical to the content of the legal provision before and after the amendment, the effect of the decision of unconstitutionality of a legal provision extends to the “former legal provision before and after the amendment,” it may result in a violation of the trust and legal stability of the members of society.

B. Article 47(3) of the Constitutional Court Act provides that “If a case has previously been decided to be constitutional with respect to the pertinent provision, the former provision becomes null and void retroactively from the date following the date on which the decision of unconstitutionality is made, the latter would lose its effect retroactively to the date on which the decision of unconstitutionality is made” in the proviso of Article 47(3) of the same Act provides that “if a case is decided to be constitutional with respect to the said provision, the latter would lose its effect retroactively to the date on which the decision of unconstitutionality is made, the latter would protect social trust and legal stability of the norms accumulated up until the date on which the decision of unconstitutionality is made, by recognizing the effect of the retroactive effect of the decision of unconstitutionality, which limits the retroactive effect of the decision of unconstitutionality. In addition, the Constitutional Court has to expand or limit the subject-matter of adjudication as a result of consideration of the legal ideology conflicting with the above principles surrounding the retroactive effect of the decision of unconstitutionality.”

Considering the normative meaning of a decision of constitutionality on the legal provisions of punishment, the significance of the Constitutional Court’s decision of confirmation of the subject of adjudication of constitutionality, and the intent of the division of authority between the court and the Constitutional Court on the retroactive expansion of the decision of unconstitutionality, a court cannot make any different judgment on “pre-amended legal provisions” where the Constitutional Court made a decision of constitutionality, and this also applies where the Constitutional Court expresses that the previous decision of constitutionality on “pre-amended legal provisions” is modified on the grounds of the decision of constitutionality on “the pre-amended legal provisions.”

2. A. The lower court dismissed the re-appellant’s request for retrial on the following grounds. Article 329 of the Criminal Act applies to Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “former Specific Crimes Aggravated Punishment Act”) and a criminal conviction against the re-appellant becomes final, and the Constitutional Court rendered a decision of unconstitutionality as to “The grounds for retrial under Article 5-4(1) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “former Specific Crimes Aggravated Punishment Act”) do not constitute a violation of the former Special Crimes Aggravated Punishment, etc. Act (amended by Act No. 1029, Mar. 31, 2010; hereinafter “former Specific Crimes Aggravated Punishment Act”). However, the grounds for final judgment of unconstitutionality are not established.

B. Meanwhile, the Constitutional Court decided that Article 5-4 (1) of the former Specific Crimes Aggravated Punishment Act applied to the Re-Appellant on March 23, 1995 does not violate the Constitution (9Hun-Ba59 ruling). In addition, on the grounds of the decision of unconstitutionality of this case, it stated that the part inconsistent with the opinion of the decision of unconstitutionality of this case among the above 93Hun-Ba59 ruling on Article 5-4 (1) of the former Specific Crimes Aggravated Punishment Act should be modified within the scope. However, on the grounds of the decision of unconstitutionality of this case, the decision of unconstitutionality of this case did not extend to the subject of adjudication under Article 5-4

C. Therefore, in light of the above legal principles, on the premise that the former Specific Crimes Aggravated Punishment Act provisions as a corporation at the time of action apply to the re-appellant, the judgment of the court below that the effect of the decision of unconstitutionality as to the revised Specific Crimes Aggravated Punishment Act does not extend to the former Specific Crimes Aggravated Punishment Act provisions is just, and there is no error in the misapprehension of legal principles as to the effect of the decision of unconstitutionality and the existence or absence of the grounds for retrial as prescribed in Article 47 (4) of the

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)