Whether a complaint or special complaint may be filed against a decision to dismiss an application for unconstitutionality (negative)

Article 41(1) and (4) of the Constitutional Court Act; Articles 439, 442, and 449 of the Civil Procedure Act;

Supreme Court Order 93Do34 delivered on August 25, 1993 (Gong1993Ha, 2728) Supreme Court Order 99Do18 delivered on June 14, 1999

Special Appellants

Seoul Criminal Administration Order 2008Ka2941 dated December 8, 2008

The special appeal shall be dismissed.

A special appellant against the decision of the court below which dismissed a request for a judgment on the constitutionality of a special appellant, submitted a document and appealed. However, Article 41(4) of the Constitutional Court Act provides that no appeal may be filed against a decision on the request for a judgment on the constitutionality of a statute, and thus, with respect to a decision on the dismissal of a request for a judgment on the constitutionality of a statute, no appeal or reappeal may be filed pursuant to a civil lawsuit. Meanwhile, as the court in charge of the judgment should conduct an ex officio deliberation on which statute, which is the premise of a judgment, has to be decided on the constitutionality of a statute, if a party files an appeal against the case on the merits, the appellate court should independently deliberate and decide on whether the statute is unconstitutional or not, so the decision on the request for a judgment on the constitutionality of a statute has the nature of an intermediate decision on the merits, which is subject to a judgment on the constitutionality of a bill, and does not constitute a decision on the rejection of a request for a judgment on the constitutionality of a statute of limitations (see Supreme Court Order 93Da344, August 25, 19999, etc.).

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

Justices Kim Ji-hyung (Presiding Justice)