[1] Where the retroactive effect of the Constitutional Court's decision of unconstitutionality is limited

[2] The case holding that the retroactive effect of the Constitutional Court's decision of unconstitutionality as to Article 31 subparagraph 5 of the former Local Public Officials Act is limited to a general case filed after the decision of unconstitutionality is made

[1] Articles 41 and 47 of the Constitutional Court Act / [2] Articles 31 subparagraph 5 and 61 of the former Local Public Officials Act (amended by Act No. 6786 of Dec. 18, 2002), Articles 41 and 47 of the Constitutional Court Act

[1] Supreme Court Decision 91Nu5747 delivered on January 15, 1993 (Gong1993Sang, 735), Supreme Court Decision 92Da12377 delivered on January 15, 1993 (Gong1993Sang, 698 delivered on August 29, 2002), Constitutional Court en banc Order 2001Hun-Ma7888, 2002Hun-Ma173 Delivered on August 29, 2002 (Hun-Gong72, 760), Supreme Court Decision 2005Du5628 delivered on November 10, 205 (Gong205Ha, 1971)

Plaintiff (Attorney Yang Chang-soo et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Korea Forest Corporation (Attorney Park Young-young, Counsel for defendant-appellant-appellant)

Gwangju High Court Decision 2003Nu1768 delivered on July 22, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The effect of the decision of unconstitutionality of the Constitutional Court is not limited to the case in which the Constitutional Court made a request for adjudication of unconstitutionality or made a request for adjudication of unconstitutionality before the decision of unconstitutionality is made, but the case in which the Constitutional Court made a request for adjudication of unconstitutionality or made a request for adjudication of unconstitutionality before the decision of unconstitutionality. However, the effect of the decision of unconstitutionality is limited to the case in which the court is pending after the decision of unconstitutionality is based on the premise of judgment, and the case in which the relevant law or provision of law has been brought before the court. However, even though the court does not apply the law or provision of law decided unconstitutional, it is not limited to the restriction of the retroactive effect by other legal principles. It is rather necessary to limit the retroactive effect of the decision of unconstitutionality when it is inevitable for the maintenance of legal stability or the protection of the trust of the parties (see, e.g., Supreme Court Decisions 93Da42740, Oct. 25, 1994; 2004Du12685.

The following circumstances acknowledged by the lower court as unconstitutional: (a) the provision of this case is deemed unconstitutional; (b) the purport of the provision of this case’s unconstitutionality is that if a public official is subject to a suspended sentence of imprisonment without prison labor or heavier punishment, he/she naturally retires from the public official; (c) the Plaintiff was subject to a suspended sentence for eight months due to preparation of false public documents and the crime of uttering; and (d) where multiple public officials, such as the State Public Officials Act, the Police Officials Act, and the Military Personnel Management Act, are subject to suspended sentence of imprisonment without prison labor or heavier punishment than suspension of qualification or heavier punishment, the Plaintiff’s provision of this case’s unconstitutionality is clearly accepted as unconstitutional; and (e) the Plaintiff’s provision of this case’s unconstitutionality provision regarding 1 and 31 subparag. 5 of the former Local Public Officials Act (amended by Act No. 6786, Dec. 18, 200; and (e) thus, it appears that the period of service of the public official would be unconstitutional and thus void.

The decision of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the retroactive effect of the decision of unconstitutionality and the principle of protection of trust or incomplete hearing, as alleged in the

Therefore, the appeal is dismissed, and the costs of appeal 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 Kang-soo (Presiding Justice)