헌법불합치결정의 근거 및 정당화 사유에 대한 비판적 검토

Abstract

The Constitutional Court is the final interpreter of the Constitution and the jurisdiction with the authority to determine the contents of the Constitution through interpretation. According to the principle of separation of power, the Constitutional Court must exercise its authority within the limits of the authority granted by the Constitution, the same as other state agencies. In particular, care should be taken not to reign as uncontrolled controllers by giving extensive control over legislators, emphasizing their status as final interpreters of the Constitution in their relationships with legislators. The unconformity decision is related to the legislative power of the National Assembly and the temporal effectiveness of the law. The unconformity decision does not belong to the right to form part of the Constitutional Court Act and has no effect less than the unconstitutional decision. Considering that Germany, Austria, and France have explicit ground rules in law or constitution, it is also deemed necessary for us to have explicit ground rules for the unconformity decision. Among the reasons for justifying the unconformity decision, the "reason to secure legal stability due to high concerns of legal vacuum or legal confusion" should be refrained as much as possible, and it is necessary to carefully argue that other decision methods are not allowed constitutionally. And the reason why "the unconstitutional law infringes the right of freedom is unclear between the constitutional part and the unconstitutional part" is considered difficult to recognize as a justification considering the characteristics of the right of freedom and the meaning of the unconstitutional decision.