위헌결정 소급효제한의 범위에 관한 비판적 고찰 - 형벌조항을 중심으로 -

In the case of non-punished articles, under the Article XL VII, Section 2 of the Constitutional Court Act, it will invalidate at the same time as making an unconstitutional decision, on the other hand, in the case of punishment articles, it will apply retroactively then invalidate. About this, at first, we read according to the statute book without any other discussions and understood to be retroactive to the enactment and/or amendment of law and/or clauses at that time. However, as more than 20 years since the constitutional court was established, it required need to restriction because there have happened legal stability problems and national burden, when enacted or amended the retroactive effect of the penalty provisions. However, there will be some problems about the range of restriction, first, is it possible to restrict without legal basis, second, if restrict, which time will be selected as its restricted. Generally, when a law, which is given the unconstitutional decision, is regarded as a nullity, it is going to apply retroactively then invalidate up until enacted or amended. If the unconstitutional decision on Criminal Act cannot prove through Constitution and Constitutional Court Act, it is unable to retroactivity up until uniformly enacted or amended that time. Besides, it is able to see that considering various factors about the range of the retroactive effect will be able to restrict. Through these explains it feels the need to restrict, but at the same time, there will cause controversy about the time. About the timing of restriction, in case of previous legal case was constitutional, but the later legal case is unconstitutional, it seems to a rational argument that accepting the timing after the decision of constitutionality. However, if accept, it also means later legal case has no matter. To allow the later unconstitutional decision, that needs a change in circumstance that be reflected historical flow can change enough people’s feeling of law. However, through some had been changed precedents, it is not sure there is enough temporal space. Thus, uniformly allowing the range of retroactive until after a constitutional decision will be able to violate someone’s rights to equality. Therefore, it is possible to set a range of the retroactive effect and restrict, however the best desirable method is that should take account of people’s feelings of law, the change of period, and the value change within the range of the restriction politically and legislatively. Even before it will be solved, the Constitutional Court should not uniformly retroactive effect and restrict the request of retrial that is under the Article 47, Section 2; retroactive effect of constitution provision, as well as, under the Article 27, Section3; the final ruling of guilt, just because of legal stability and national burden, of course, it cannot violate the rights to equality and the rights of access to courts that are guaranteed by the constitution by using an unconstitutional Act as constitutionality.