전부 개정되기 전의 법률 조항 적용을 둘러싼 헌재와 대법원의 갈등 - 헌재 2012. 5. 31. 2009헌바123 사건에 대한 평석 -

The conflict between the Constitutional Court and the Supreme Courtis at its peak, concerning the problem of 'whether taxation can be basedon a provision former to its entire revision'. This article suggests that thequestion of 'whether a Decision of Limited Unconstitutionality (DLU) isbinding' must be distinguished from the question of 'whether the samedecision is proper or not'. Even if a DLU can be seen as not improper,it is still binding unless there is a flaw that makes it null and void. Whereas, as a matter of admissibility, the conventional disputeconfined itself to the choice between whether a DLU was 'completelyadmissible' or 'completely inadmissible'. But since the Supreme Courtadmits at least some forms of DLU to be binding and proper, the latterclaim is pointless. The discussion should rather concentrate on thecriteria to limit DLU, concerning which this article suggests the doctrinesof 'Prohibition on Petition against Court Judgements' and 'Partial Unconstitutionality' as the delimitating factors. In the GS Caltex case, the plaintiff filed a constitutional petition afterhis petition for retrial was denied by the court. In this article, the authorspeculates on how the Constitutional Court would deal with this case. And the author also inquires the problem of whether the taxing officeswould be allowed to go on taxing with the current bases, in the light ofwhether the constitutional Prohibition of Retroactive Legislation leavesany room for exception.