헌법부칙 제5조에 대한 재론

Article 5 of the Addenda to the Constitution stipulates as “Acts, decrees, ordinances and treaties in force at the time this Constitution enters into force, shall remain valid unless they are contrary to this Constitution.” This essay is written not as a proposal about amendment or revision of Article 5 of the Addenda to the Constitution but as a proposal about possible interpretations of it.The Article 5 is usually called as of ‘continuance effect provision’. Nevertheless two arguments implying amendment or revision of the Article or related ones are inevitably contained in the discourse. Firstly, if, despite the grammatical interpretation of the Article 5 of the Addenda to it, the losing time of validity of the acts in force under the current Constitution enacted at the time of previous Constitution but contravene to the current Constitution must be determined, not by the enforcement time of the current Constitution but by the defined time of the Article 47 (1), (2) of the Constitutional Court Act ―the said Article defines the invalidity time as ‘losing effect from the date on which such decision is made’, the Article 5 of the Addenda cannot avoid being degenerated into an ornamental Article, and such degeneration leads to the expulsion from the Constitution in case of total amendment of the Constitution. If such argument is not accepted, the Article 47 (1), (2) of the Constitutional Court Act contravenes the Article 5 of the Addenda and should be considered as unconstitutional. Secondly, if the Supreme Court can be classified as a determination institution of the continuance effect relating to the previous Constitution, some devices should be prepared to clear off the imbalance problem of necessary quorum between the Constitutional Court and the Supreme Court for not conferring continuance effect, i.e., for conferring disconnection effect. Affirmative vote of six or more Justices of the nine Justice comprising the full bench is required in making a decision of disconnection effect in the Constitutional Court; while the majority rule, i.e., affirmative vote of majority of Justices participating is required in making a decision of disconnection in the Supreme Court. To clear off the such imbalance, the Article 113 (1) of the Constitution and the sub-subsection of the Article 23 (2) of the Constitutional Court Act about the quorum should be amended or revised as the provision founding on majority rule. This two arguments ate presented not as proposals about amendment or revision but as proposals about possible interpretations. The arguments of the writer can be capsulated as followings in the interpretive viewpoint. Firstly, so long as the current Constitution corresponds to the fully amended or revised Constitution, the losing time of validity of the acts in force under the current Constitutionenacted at the time of amended or repealed Constitution but inconsistent with the current Constitution must be determined, not by the defined time of the Article 47 (1), (2) of the Constitutional Court Act but by the enforcement time of the current Constitution. By the same token, so long as the previous Constitution corresponds to the fully amended or revised Constitution, the losing time of validity of the acts in force under the previous Constitution enacted at the time of pre-previous Constitution but inconsistent with the previous Constitution must be determined by the enforcement time of the previous Constitution. Secondly, though the Supreme Court can be classified as an examination institution of the continuance effect relating to the previous Constitution, the legitimity of such determination must be reviewed by the Constitutional Court in order to maintain the unification of interpretations between the Constitutional Court and the Supreme Court. Thirdly, the founding norm under the current Constitution is the previous Constitution in determining the continuance effect of the Acts in force at the time of previous Constitutionenacted at the time of pre-previous Constitution but inconsistent with the previous Constitution. Fourthly, the necessary quorum for not conferring continuance effect, i.e., for conferring disconnection effect to the acts enacted at the time of pre-previous Constitution should be determined by the previous Constitution even though the examination under the previous Constitution exists.