[1] Whether an appeal procedure is included in the "court procedure of the case in question" under Article 68 (2) of the Constitutional Court Act, in which a request for an adjudication on unconstitutionality cannot be filed again for the same reason after the dismissal of the request (affirmative)

[2] Where a lower court filed an application for adjudication of unconstitutionality on the ground that Article 3(1) and the former part of Article 3-2(1) of the former Housing Lease Protection Act violate Article 11 of the Constitution guaranteeing equal rights to equality, but the court of final appeal dismissed the application, and then filed an application for adjudication of unconstitutionality in addition to the above provisions of the Constitution, which guarantee the freedom of residence and transfer, property rights, and the principle of excessive prohibition, the case holding that Article 68(2) of the Constitutional Court Act is unlawful on the ground that it

[1] According to the provisions of Articles 41(1), 68(2) and 69(2) of the Constitutional Court Act, a party who requested a trial on the constitutionality of a law shall file an adjudication on constitutional complaint within 14 days if such request was rejected, on the ground that the party's request becomes the premise of a trial on the constitutionality of a law, and a constitutional complaint shall be filed within 14 days if such request was rejected. In the litigation procedure of the case in question, a request for a trial on the constitutionality of a law cannot be filed again

[2] The case holding that in a case where a lower court filed an application for adjudication of unconstitutionality with respect to a violation of Article 3(1) and the former part of Article 3-2(1) of the former Housing Lease Protection Act (amended by Act No. 5641 of Jan. 21, 191) against Article 11 of the Constitution guaranteeing the right to equality, and then dismissed the application for adjudication of unconstitutionality, in addition to the above provisions of the Constitution, it is against the Constitution guaranteeing the freedom of residence and transfer, property right, and the principle of excessive prohibition in addition to the above provisions of the Constitution.

[1] Articles 41(1), 68(2), and 69(2) of the Constitutional Court Act / [2] Articles 41(1), 68(2), and 69(2) of the Constitutional Court Act; Article 3(1) of the Housing Lease Protection Act; Article 3-2(1) of the former Housing Lease Protection Act (amended by Act No. 5641 of Jan. 21, 199); Article 11, 14, 23, and 37(2) of the Constitution of the Republic of Korea

[1] Supreme Court Order 95Du13 dated May 14, 1996 (Gong1996Ha, 1886)

Applicant (Attorney Kim Dong-dong, Counsel for defendant-appellant)

The request for unconstitutionality of an applicant shall be dismissed.

Article 41(1) of the Constitutional Court Act provides that when a law is based on a premise of a trial on constitutionality, the court in charge of the case shall, ex officio or by decision upon request of a party, request an adjudication on constitutionality to the Constitutional Court. Article 68(2) of the same Act provides that when a request for adjudication on constitutionality of a law under Article 41(1) is dismissed, the party who has made the request may request an adjudication on constitutional complaint to the Constitutional Court. In this case, the party may not again request an adjudication on constitutionality of a law again for the same reason in the litigation procedure in question. Article 69(2) of the same Act provides that a request for adjudication on constitutionality of a law under Article 68(2) shall be made within 14 days after the date the request for adjudication on constitutionality of a law is dismissed. According to the above provisions, an adjudication on constitutional complaint shall be filed within 14 days after the request for adjudication on constitutionality of a law is based on the premise of a trial on constitutionality of a law.

According to the records, the applicant filed a motion for adjudication on the unconstitutionality of the above provision with the above court on February 3, 1998, claiming that the above provision was unconstitutional on the same ground, and again dismissed on March 25 of the same year, on the same ground in the proceedings of the Supreme Court in the civil case, the applicant filed a motion for adjudication on the unconstitutionality of the above provision on March 25, 1998, by adding only the fact that the above provision was unconstitutional since the Housing Lease Protection Act (amended by Act No. 4188, Dec. 30, 1989) which is the premise of the judgment in the proceeding of the case of Seoul District Court 97Gahap790 (Seoul District Court 97Gahap790) and Article 3(1) and the former part of Article 3-2(1) of the Housing Lease Protection Act (amended by Act No. 4188, Dec. 30, 1989) unfairly limits the right to preferential reimbursement of the housing lessee who moved on the unconstitutionality of the above provision.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench that the applicant’s request for proposal of this case is dismissed.

Justices Yoon Jae-sik (Presiding Justice)