헌법불합치결정과 개선입법의 현실적 문제에 관한 비판적 검토

A “Unconformable to Constitution” decision is a typical transformation decision established through the Constitutional Court cases. This decision means the Constitutional Court acknowledges unconstitutionality of this issued law but merely requests the National Assembly to revise it by a certain period while having the law remain effective until that time. The “Unconformable to Constitution” decision in this country has no legal ground contrary to that in Germany. So it depends on the discretion of the Constitutional Court. It is important that we should make it clear that what the justifying condition and the principle of this decision is. It functions as a guide that a court holds a trial and other state organs conduct as well. The Constitutional Court makes a “Unconformable to Constitution” decision in the event that a law violates the constitutional principle of the equality. The Constitutional Court also makes this decision due to the various legal stabilities. When the Constitutional Court makes a decision of temporary application with a time limit for revision as well as a “Unconformable to Constitution” decision, the court settles a case in applying that law into the pending litigation case. The Assembly has the obligation to legislate the Act that reflects the intent of the Constitutional Court`decision in the time limit. But it happens some constitutional problems in the occasion when the Assembly misses this time limit without any revision. for example, retroactive power of this unconformable law to Constitution and revision law. Recent some lower courts' decisions and the constitutional court' decision suggest these issued constitutional problems. So this article examines theses constitutional problems related with the “Unconformable to Constitution” decision and a time limit for revision.