법률에 대한 헌법소원심판에 있어서의 권리보호이익

다국어 초록 (Multilingual Abstract)

The present article attempts to demonstrate the following:
1. When a statute is decided to be unconstitutional, via Unconstitutionality Review by Art. 47 or Constitutional Complaint by Art. 68 Sec. 2 of the Korean Constitutional Court Act (hereinafter the 'KCCA'), the 'rectroactivity' of the decision on the party to the questioned case itself must be grounded on Art. 42 or Art. 75 Sec. 7, not on mere 'interpretation', of the KCCA. Even in cases of penal statutes, the above retroactivity cannot be based on Art. 47 Sec. 3 thereof.
2. In cases where statutes are decided to be unconstitutional in a Constitutional Complaint via Art. 68 Sec. 1, there is no legal basis to think that Art. 47 of KCCA can be applied therein. Even if it can be construed to be applied mutatis mutandis, there is no such statute like Art. 42 or Art. 75 Sec. 7 which can ground the retroactivity to the party in the questioned case itself. Thus, in cases where a Constitutional Complaint is targeted -not to the exercise of official power itself but- to the 'grounding statute' of the exercise thereof, even if the statute is decided as unconstitutional, the exercise itself -if it is already settled- is valid. Which deprives the Interest of Rights Protection in those cases.
3. The cases say that the requisite 'directiveness' can be satisfied where even if there is an enforcement action based on the questioned statute, (1) there exists no procedure for remedy for the above action, or (2) there does exist a procedure in the above sense, but the procedure cannot be expected to lead to actual redemy and thus becomes nothing but a superfluous detour. Those cases need to be reexamined. Where the Interest of Rights Protection cannot but be denied, it is meaningless to say that the enforcement is 'direct'.

참고문헌 (Reference)

• 1 허영, "헌법소송법론" 박영사 2015
• 2 김하열, "헌법소송법" 박영사 2014
• 3 헌법재판연구원, "주석 헌법재판소법" 2015
• 4 사봉관, "위헌결정의 효력발생시기- 헌법재판소법 제47조 제2항의 ‘결정이 있는 날로부터’에 대한 해석론을 중심으로" 헌법재판소 18 : 2007
• 5 정주백, "법률의 헌법소원대상성에 관한 관견" 헌법재판소 26 : 2015