2022년 헌법 주요 판례 평석

Abstract

The Constitutional Court received a total of 2,829 cases in 2022 alone. Among the decisions made by the Constitutional Court in 2022, this paper reviews major decisions centered on unconstitutionality (including decisions on modification, such as decisions on inconsistency) or decisions confirming the constitutionality, but also briefly introduces important precedents related to the constitution among Supreme Court precedents. The Constitutional Court already decided in 1997 that Article 68, Paragraph 1 of the Constitutional Court Act, which prohibits a constitutional complaint against trial, does not violate the Constitution in principle. However, the Constitutional Court held that “Even when the court violates the people's fundamental rights by applying a law that the Constitutional Court has determined to be unconstitutional, if Article 68, Paragraph 1 of the Constitutional Court Act is interpreted as not allowing a constitutional complaint against trial, it is unconstitutional to that extent” and has continued to maintain this decision. Although Article 68 Paragraph 1 of the Constitutional Court Act, which had already prohibited the constitutional complaint in 1997, does not violate the Constitution in principle, the Constitutional Court said, “If the court decides that the Constitutional Court is unconstitutional, it loses its effect in whole or in part, or is unconstitutional. If it is interpreted as not allowing a constitutional complaint against a court decision even if the basic rights of the people are violated by applying the law confirmed as has been maintained. In the above case, the Constitutional Court revoked the Supreme Court decision that applied the 'statutory provision that had already partially lost its effect by declaring the limited unconstitutional decision', and cited the original administrative disposition request for constitutional complaint as an exception. After making the first decision to cancel the trial in 1997, on 30. 6. 2022. the Constitutional Court made a second decision to cancel the trial. In order to fundamentally resolve the conflict between the court and the Constitutional Court over the binding force of the limited unconstitutional decision, it is necessary to explicitly recognize the binding force of the modified decision through legislation. Among the decisions of the Constitutional Court in 2022, the law with the most unconstitutional decisions is the Public Official Election Act, which excessively restricts freedom of political expression. The Constitutional Court ruled that the prohibition of 'election campaigns in which individual face-to-face and verbal appeals for support', the prohibition of installation of facilities, the prohibition of holding assemblies and the prohibition of posting documents and drawings were unconstitutional or constitutional inconsistent on the grounds that they excessively violated the freedom of political expression. The Supreme Court sometimes made decisions that were more friendly to basic rights than the Constitutional Court. For example, the Supreme Court changed the precedent and determined that the state's responsibility for compensation was recognized for victims arrested under Emergency Measures No. 9 in 1975. In addition, unlike the precedents and decisions of the Constitutional Court, the Supreme Court ruled that sexual intercourse between soldiers of the same sex can be punished only when “there is another circumstance that violates the right to sexual self-determination against the will of one party or directly and specifically violates military discipline”