헌법재판소는 법원 재판의 당부를 심사할 수 있는가?: 헌재 2012. 5. 31. 2009헌바123ㆍ126(병합)

Our Constitutional Court ruled that when a law is fully revised and an additional clause of an old law is not included in a new law, the additional clause is not effective any more. Thus the Supreme Court's ruling that the additional clause at issue is still in force exceptionally despite it is not included in the fully-revised law is unconstitutional in the context. But the Constitutional Court's ruling ought to be criticized in the followings. ⅰ) Decision on whether the additional clause at issue is in effective belongs to Constitutional Court's power, because it is not constitutional problem, but legislative one. ⅱ) The intend of the legislators was the retaining of the additional clause at issue, and the enforcement ordinance of the law had some provisions on the assumption of the effect of the additional clause at issue. ⅲ) In this case Constitutional Court ruled that the interpretation which the additional clause at issue is till in effective is unconstitutional in the context. But Constitutional Court reviewed whether the court's judgement is right or wrong actually in this case. It does not meet our judicial review system that separates (general) court from the Constitutional Court. ⅳ) Denial of the effect of additional clause at issue is is unjust in this case from the viewpoint of the tax-equity.