헌법재판소의 변형결정에 대한 비판적 검토

Article 45 of the Constitutional Court Act under the name of 'Decision of Unconstitutionality' stipulates "The Constitutional Court shall decide only whether or not the requested statute or any provision of the statute is unconstitutional: Provided, That if it is deemed that the whole provisions of the statute are unable to enforce due to a decision of unconstitutionality of the requested provision, a decision of unconstitutionality may be made on the whole statute." We could say that it provided only two forms of decisions, constitutional or unconstitutional as measures of the norms control. But the fact the dichotomized forms of decision might be not sufficient to deal with all the various problems soon became realized. So from the early time on, the Constitution Court introduced 'modified forms of decisions' such as those of 'limited constitutionality' 'limited unconstitutionality', and 'nonconformity to the Constitution'. The decision of limited constitutionality means that of the object of constitutional review of statutes, some part of it the Constitutional Court thinks is constitutional would be declared as constitutional. On the other hand, the Constitutional Court could declare some part of the object of constitutional review of statutes is unconstitutional. It regards two forms of decisions are basically the same in the meaning that two are all 'partly unconstitutional decision in quality'. And the decision of nonconformity to the Constitution is declared when a relevant object is contrary to Constitution but in consideration of some aspects which Constitutional Court thinks are related to the essential part of stability of legal system, it needs to make the object have a formal effect as a law up to some future point. But we could say that the attitude of the Constitutional Court toward decisions of limited constitutionality and limited unconstitutionality has the possibility of intrusion of the right of general courts on the interpretation of statutes, which is overall thought to be the right of general courts. Reviewing several problems over decisions of limited constitutionality and limited unconstitutionality, I suggested in conclusion that in the decision of limited constitutionality except the part declared as constitutional it means unconstitutional but to the contrary to it, in the decision of limited unconstitutionality except the part declared as unconstitutional it means the Constitutional Court reserve the attitude of if it is constitutional or unconstitutional. And I contended that the Constitutional Court must not use the form of decision of limited constitutionality as much as possible, which is inevitably to include indefinite concept producing many problems. In the decision of nonconformity to Constitution we could find the easiness of Constitutional Court's dependence on it. Under strict conditions made by a notion that it must be a very rare exception, it's declaration should be limited as much as possible, especially in the case of 'continuous application' of when a law is declared as contrary to Constitution but in the fear of a blank the declaration causes inevitably is given the room of application. Anyway we have to find elaborate standards for modified forms of decisions, by which Korean Constitutional Court could harden the reputation as a guardian of the Constitution.