헌법불합치결정유형에 관한 몇 가지 생각 -집시법 헌법불합치결정을 중심으로-

The Constitutional Court’s recent ruling on the statutory ban on night time outdoor meetings and demonstrations took a suspended unconstitutionality decision-making pattern (called inconsistency decision; Unvereinbarerklärung) in which its decision would take effect becoming null and void from a designated future date unless the National Assembly revised the statutory provision so as to be consistent with the Constitution up to the time set. The general statutory ban defined night time as beginning from sunset and ending at sun rise and also provided for an exception when a meeting permission was granted by the police on certain conditions. Constitutionally it requires at least 6 votes for the nine member Constitutional Court to declare a statutory provision as unconstitutional. At the ruling, however, there was no 6 votes majority emerged with tri-partite division among 7 Justices supporting the inconsistency decision: 5 Justices plurality for the article’s unconstitutionality on the ground of the permission clause, 2 out of the plurality for the ban being unconstitutional on its entirety, and 2 for inconsistency ruling. Thus, the inconsistency decision was regarded as a minimum common denominator. It is difficult, however, to determine which part of the statutory provision at issue is indeed inconsistent with the Constitution(unconstitutional) since no opinion commands binding force with 6 supporting Justices. Each opinion possesses perhaps only a persuasive power. For the people, for the National Assembly, and for the trial courts, it is desired of the Constitutional Court to give an undivided message for the sake of clarity principle, particularly in such a politically sensitive area of law as statutory night time ban on rallies and demonstrations involving freedom of expression. Naturally, it is also desirable for Chief Justice to possess ability to play a moral, jurisprudential or intellectual leadership role influencing over associate Justices in having the Constitutional Court reach a consensus or 6 votes majority. To a certain extent, failure in parliamentarism contributes to judicialization of politics phenomenon in Korea with increased number of constitutional litigations filed at the Constitutional Court. Now, the suspended unconstitutionality (inconsistency) decision, however, passes the buck on the legislature. Jurisprudentially definition of night time is not easy to legislate. Besides, the Constitutional Court’s inconsistency decision left a number of legislatively thorny issues and tasks with the National Assembly whose performance and behavior disappoint the people greatly these days.