재판소원의 금지와 헌법재판소에 의한 취소결정의 범위

Abstract

Even if the Constitutional Complaint for a trial is exceptionally possible, it is necessary to distinguish whether the subject of the Constitutional Complaint is a “judgment subject to retrial” or a “judgment to dismiss a retrial.” According to the Constitutional Court, even if it cancels the “judgment to dismiss the retrial,” it cannot cancel the “judgment subject to retrial.” However, as long as the court's judgment is contrary to the effect of the Constitutional Court's unconstitutional decision, the scope of a trial subject to a Constitutional Complaint cannot be changed by the accidental factor of whether the Constitutional Court's unconstitutional decision is sentenced before or after the “court's judgment.” In order to control the case that provided the cause of the retrial request, at least the retroactive effect of the unconstitutional decision should be recognized in the case where a limited unconstitutional decision is sentenced after a trial applying the law before the Constitutional Court decides it is unconstitutional. This is because the scope of recognition of the trial court is in line with the scope of the retroactive effect of the unconstitutional decision. Therefore, at least the final judgment that provided the cause of the request for retrial, the court's judgment to dismiss the request for retrial, and the Constitutional Court's decision to cancel all of them are on the same line, so it would be reasonable to cancel not only the “judgment of dismissal of retrial” but also the “judgment subject to retrial” through the Constitutional Complaint against a trial, and to sentence the decision to confirm unconstitutionality for the legal provisions on the basis of the “judgment subject to retrial.”