재판의 전제성과 헌법재판소의 법률해석권 - 헌법재판소 2010. 9. 30. 2009헌가23․31(병합) -

Whereas Our Constitution Article 101(1) provides that Judicial power shall be invested in courts composed of judges. Whereas Article 107(1) provides that when the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof. With regard to the above said clauses, 2010. 9. 30. Constitutional Court of Korea Ruled that in case Criminal Penalty Clause concerning Liability Without Fault is revised to Negligence Liability, an old law is disqualified from the prerequisite for judgment because Criminal Act Article 1(2) shall be applicable to this case(the Medical Services Law Case) which provides that when the punishment therefor under the new law becomes less severe than under the previous law, the new law shall apply. But the above said decision of the Constitutional Court is ought to be criticized for the following reasons;First, whether a new law is less severe than the previous law or not is a problem of fact-finding which belongs exclusively to the power of the Courts. Second, in this case, a new law is not less severe than the previous law. Third, even if it is not applicable to the above case, that is the case constitutional elucidation is necessary, so the Constitutional Court should have admitted Prerequisite for Judgment. Fourth, the Constitutional Court should have extended the scope of the Adjudication in this case regarding the duty that it should be. Fifth, discriminating against the accused according to whether the law is revised in this case is not a disadvantage in fact, but a discrimination which our Constitution prohibits.