[1] Whether the Constitutional Court's decision of limited unconstitutionality has binding force on the power to interpret and apply the statutes of the court (negative)

[2] Whether a decision of limited unconstitutionality by the Constitutional Court constitutes grounds for retrial under Article 75 (7) of the Constitutional Court Act (negative)

[1] Although the Constitutional Court's decision of unconstitutionality as to all or part of the law or legal provisions which are the object of constitutional complaint, it does not result in the same effect as abolition of all or part of the law or legal provisions, but in the case of so-called limited unconstitutional decision that only such interpretation is unconstitutional, despite the Constitutional Court's decision of unconstitutionality, the law or legal provisions continue to exist without any difference in their language and text. Thus, such limited unconstitutional decision cannot be understood as a legal interpretation that provides the meaning, contents, and applicable scope of the law or legal provisions which remains effective or the legal provisions. However, in the trial of a specific dispute case, the authority to determine the meaning, contents, and applicable scope of the law or the legal provisions is an essential substance of the judicial authority. Interpretation and application of the law to harmonize with the constitutional provisions is the highest court's authority to interpret and apply the law, and thus, it cannot be understood that the Constitutional Court's decision of unconstitutionality as to the legal provisions that only the basic principles of interpretation and application of the law, including constitutional interpretation, should be presented to the Constitutional Court.

[2] Article 75 (7) of the Constitutional Court Act refers to a case where the Constitutional Court renders a decision of unconstitutionality binding on the court. In this case, the decision of unconstitutionality binding on the court cannot be binding on the authority to interpret and apply Acts and subordinate statutes exclusively belonging to the court. Therefore, the above ground for retrial cannot exist on the ground that the Constitutional Court renders a decision of unconstitutionality binding on the court after the litigation becomes final and conclusive.

[1] Articles 101, 103 of the Constitution, Articles 45, 47(1) and (2), 68(1), and 75(1) of the Constitutional Court Act / [2] Article 75(1) and (7) of the Constitutional Court Act

[1] Supreme Court Order 95Nu11405 delivered on April 9, 1996 (Gong1996Sang, 1442 delivered on December 24, 1997) 96HunMa172, and 173 delivered on December 24, 1997 (Hun-Ma9-2, 842)

Geul Fire Insurance Co., Ltd. (former Trade Name: Marine Insurance Co., Ltd.) (Attorney Park Jae-de, Counsel for the plaintiff-appellant)

Korea

Supreme Court Decision 94Da6741 delivered on May 27, 1994

The request for retrial shall be dismissed. Litigation costs for retrial shall be borne by the plaintiff (Plaintiff).

The grounds for request for retrial shall be considered.

1. Factual basis

When a case subject to review is pending in the Seoul High Court which is the appellate court, the plaintiff (hereinafter referred to as "the plaintiff") filed a motion for adjudication on constitutionality of Article 2 (1) of the State Compensation Act (hereinafter referred to as "the State Compensation Act") with the Constitutional Court on June 9, 1993, but the motion was dismissed.

After all, the Seoul High Court affirmed the first instance judgment that dismissed the plaintiff's claim on December 1 of the same year, and dismissed the plaintiff's appeal (92Na14214), and pursuant to the proviso of Article 2 (1) of the State Compensation Act on May 27, 1994, where a soldier, military employee, etc. was killed in action or on duty due to an act in relation to his/her performance of duties, etc., if he/she is entitled to compensation pursuant to the provisions of other Acts and subordinate statutes, he/she shall not exercise the right to reimbursement against the State on the ground that the person liable for joint tort was not allowed to exercise the right to reimbursement against the State on the ground that he/she performed the duty of compensation.

However, in the constitutional complaint case filed by the plaintiff on December 29, 1994, the Constitutional Court rendered a decision that "if a soldier ..... was injured on duty in relation to the performance of his/her duties, he/she or his/her bereaved family can not claim damages pursuant to the provisions of this Act and the Civil Act when he/she or his/her bereaved family can receive compensation such as accident compensation, survivors' pension, wounded veterans' pension, etc. pursuant to the provisions of other Acts and subordinate statutes" in Article 2 (1) of the State Compensation Act (hereinafter "decision of this case"), provided that a general citizen injured a soldier on duty in the course of performing his/her duties due to a joint tort, compensates the victim for damages caused by such joint tort, and does not allow the State to exercise its right to demand reimbursement against the portion of the soldier's liability who is

Therefore, the Plaintiff filed a lawsuit for retrial of this case by asserting that there exists a ground for retrial as stipulated in Article 75(7) of the Constitutional Court Act in the judgment subject to retrial, since the Constitutional Court rendered a decision of unconstitutionality, citing the Plaintiff’s constitutional complaint after the said litigation was finalized by the declaration

2. Determination:

According to Articles 41(1), 68(2), and 75(7) of the Constitutional Court Act, in a case where a party to a trial cites a constitutional complaint filed with the Constitutional Court on whether or not the law or the provisions of law, which are the premise of the trial, which is the premise of the trial, the party concerned may request a retrial when the litigation case has already become final and conclusive, and "the case in which the constitutional complaint is cited" means the case in which the court renders a decision of unconstitutionality binding

However, like the decision of this case, the decision of this case does not result in the same result as the abolition of all or part of the law or legal provisions by rendering a decision of unconstitutionality as to all or part of the law or legal provisions which are the subject of constitutional complaint, but it does not constitute "the case where the Constitutional Court renders a decision of unconstitutionality as to the interpretation of the specific interpretation criteria, which only declares that the interpretation is unconstitutional." This is because the above decision of unconstitutionality has no binding force.

First, in the case of a decision of limited unconstitutionality, the law or the provision of law remains in effect without changing the language of the decision of the Constitutional Court. Therefore, such a decision of limited unconstitutionality cannot be understood as a legal interpretation that provides the meaning and contents of the law or the provision of the law which remains in effect and the standard of interpretation on the scope of its application.

However, Article 101 of the Constitution provides that judicial power belongs to a court comprised of judges (Paragraph 1), and the court shall be comprised of the Supreme Court and each level of court (Paragraph 2). The authority to determine the meaning, contents, and scope of application of the law and the provisions of the law in the trial of a specific dispute case, the authority to interpret and apply the law directly constitutes the essential contents of the judicial power, and the interpretation of the law in harmony with the constitutional norm is a major principle for the interpretation and application of the law. Thus, the authority to interpret and apply the law, including constitutional interpretation, shall be exclusively the court that has the highest court.

With respect to the power of a court, any other state agency’s intervention in the application of the law to a specific dispute case by presenting the interpretation criteria of law to another state agency shall not be permitted in light of the basic principles of separation of state power structure and the principle of independence of the judiciary prescribed in the Constitution of Korea. Therefore, the Constitutional Court’s decision of limited unconstitutionality, which provides the interpretation criteria of law, cannot have the binding effect on the authority to interpret and apply the law exclusively belonging to the court (see Supreme Court Decision 95Nu11405, Apr. 9, 196).

If the court gives binding force to such a decision of limited unconstitutionality, it has no choice but to follow the interpretation of the law of the Constitutional Court with respect to the exercise of judicial power dealing with specific dispute cases, and it infringes on the power to interpret and apply the law belonging to the court, and the Constitutional Court is not a court exercising the judicial power as provided in Article 101 of the Constitution but it results in the actual status of the highest court, which is contrary to the Constitution that declares the independence of judicial power and the highest court of the Supreme Court.

Second, even if the provisions of the Constitutional Court Act that embodys the constitutionality adjudication system and the constitutional complaint system established by the Constitution of Korea do not lose all or part of the legal or legal provisions, it can be seen that there is no binding effect in the decision of limited unconstitutionality.

In other words, the Constitutional Court Act requires the Constitutional Court to decide only the constitutionality of a law or a provision of a law proposed by the Constitutional Court (Article 45), and the law or a provision of a law that is decided unconstitutional (Article 47(1)), while granting binding force on the decision of unconstitutionality of a law, shall lose its effect (Article 47(2)). Therefore, while the Constitutional Court has binding force on the decision of unconstitutionality that loses its effect, there is no ground to acknowledge its binding effect on the decision of the Constitutional Court in the form of a decision of unconstitutionality that provides interpretation standards such as the limited unconstitutionality decision. In addition, the Constitutional Court Act does not provide that the decision of the court shall be excluded from the object of adjudication on constitutional complaint (Article 68(1)), and there is no provision on the contents of adjudication and subsequent procedures where the court's decision is subject to adjudication on constitutional complaint (Article 68(1). In this regard, there is a difference between the case of Germany where the Constitutional Court returns the case to the court.

In reference, in the German Constitution, since the Constitutional Court is the highest court among the courts exercising the judicial power, not the courts, but the highest court among the courts exercising the judicial power, the problem of infringing the judicial power of the court does not occur from the beginning on the ground that the binding force is granted or the judgment of a lower court is the subject of constitutional complaint.

On the other hand, in the case of Austria where the highest court and the Constitutional Court are composed of independent and equal constitutional organizations as in our country, their constitution does not grant binding force only to the decision of unconstitutionality of the Constitutional Court and recognize the constitutional complaint against the judgment of the court, and the Constitutional Court itself cannot make a decision that limits the scope of its application by constitutional interpretation without having the language of the law or the legal provision.

For the same reason, a limited decision of unconstitutionality on the basis of presenting the interpretation criteria of legal provisions cannot have binding force on the authority to interpret and apply statutes exclusively belonging to the court. Therefore, in this case, the grounds for retrial stipulated in Article 75(7) of the Constitutional Court Act cannot be deemed to exist on the ground that the decision of this case was rendered by the Constitutional Court after the decision of this case became final and conclusive after the plaintiff's constitutional complaint was sentenced in the pertinent litigation case related to the

3. Conclusion

Ultimately, the retrial of this case is not recognized as grounds for retrial, and it is dismissed, and the costs of retrial are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)