In a case where the Constitutional Court Act requests a court to suspend a trial on the constitutionality of a law, whether it is against the Constitution if either party applies for a request for adjudication on the constitutionality of a law or a request for adjudication on constitutional complaint under Article 68(2) of the Constitutional Court Act (negative)

Articles 42(1) and 68(2) of the Constitutional Court Act, Article 27 of the Constitution

Applicant

The request for adjudication on the constitutionality of the instant case is dismissed.

The reason for requesting an adjudication on constitutionality is examined.

Article 42(1) of the Constitutional Court Act provides that the trial of the relevant case shall be suspended until the Constitutional Court makes a decision on the constitutionality of a law if the court requests an adjudication on the constitutionality of a law to the Constitutional Court. However, the purport of Article 42(1) of the Constitutional Court Act is that if a party makes a request to a court for adjudication on the constitutionality of a law, the adjudication on the relevant case shall be suspended immediately at the time of the request to the court for adjudication on the constitutionality of a law, and if the request for adjudication on the constitutionality of a law requested by a party is rejected by the court, and the adjudication on the constitutionality of a law

Therefore, as long as there is a legislative discretion to form the specific contents of the right to claim a trial guaranteed by Article 27(1) of the Constitution, and the content of the formation thereof does not deviate from the limit of reasonable discretion, it cannot be determined as unconstitutional.

Pursuant to Article 107(1) of the Constitution and Articles 41 and 43 of the Constitutional Court Act embodying it, the court shall make a request for adjudication on the unconstitutionality of a law to the Constitutional Court, and make the relevant judgment according to the adjudication of the Constitutional Court based on this decision, only in a case where the court determines that there is a reasonable doubt that the provisions applicable to the relevant judgment are unconstitutional. However, if the court continues to proceed with the trial before making a decision on the unconstitutionality of a law, it would not only go against its own determination that there is a reasonable doubt that the provisions applicable to the trial would be unconstitutional, but also make it difficult to guarantee the effectiveness of specific norm control. Therefore, even if the court has somewhat sacrificed the benefit of prompt judgment obtained by continuing the trial without suspending the trial, it is necessary and beneficial to suspend the relevant litigation case

On the other hand, the law enacted by the National Assembly, which is a representative body of the people, is presumed to be constitutional until the Constitutional Court makes a decision of unconstitutionality, barring special circumstances. Thus, it is difficult to say that the parties applied for a motion to propose a ruling of unconstitutionality, and that there is no benefit to suspend the trial even when the interests of the court are harmed notwithstanding the above presumption. Furthermore, in a case where the court dismisses the motion to propose a ruling of unconstitutionality and requests a adjudication of constitutionality under Article 68(2) of the Constitutional Court Act, if there is no reasonable doubt that the relevant legal provision is unconstitutional, or the application is unlawful, it is hard to say that there is a benefit to suspend the trial notwithstanding the presumption of constitutionality

Therefore, Article 42(1) of the Constitutional Court Act provides that the court shall suspend a trial in the event of a request for adjudication on the unconstitutionality of a law by a party or a request for adjudication on constitutional complaint by Article 68(2) of the Constitutional Court Act shall be deemed reasonable in the absence of such provision, and there is no reason to deem that there is a deviation from the limit of legislative discretion, and Article 42(1) or 68(2) of the Constitutional Court Act shall not be deemed to be in violation of the Constitution.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench that the motion for adjudication on the constitutionality of this case is dismissed.

Justices Kim Nung-hwan (Presiding Justice)