대법원의 파기환송판결과 재판소원 대상

Article 68, Section 1 of the Constitutional Court Act, which specifies Article 111, Section 1, Clause 5 under the Constitution, excludes the judgments of the ordinary courts from the subject of adjudication on constitutional complaints. However, while in principle, the Constitutional Court does not allow constitutional complaints to be filed against the court judgments, it allows an exception by having rendered the decision of limited unconstitutionality as to Article 68, Section 1 of the Constitutional Court Act. As such, a consitutional complaint may be filed against a court judgment that is not consistent with the Constitutional Court's decision that found the statute unconstitutional. When constitutional complaints can be filed against court judgments as an exception, complaints, of course, must satisfy the principle of subsidiarity in order to meet the legal prerequisites. Thus, the judgments that have incontestability (formale Rechtskraft) can only be the subject of constitutional complaints for adjudication and final judgments of the last resort generally become the subject of constitutional complaints against court judgments. When the Supreme Court renders a decision in the appellant's favor, the principle is that it vacates the judgment below and remands the case to the lower court rather than vacating and determining the case on its own. When the Supreme Court vacates and remands the lower court's decision, the case is not resolved yet and the litigation is not settled. Because of this, it is disputed whether the Supreme Court decision that vacates and remands the lower court's ruling is an interim decision or final one. Further, even if the Supreme Court's decision vacating and remanding the case is understood as a final decision, opinions are divided as to whether it is a 'confirmed' final decision. The Supreme Court's decision vacating and remanding the case is a final decision since it completes the appellate review process and removes the case from the process. In light of rapid relief of parties' rights, the guarantee of legal stability and constitutional complaints according to Article 68, Section 1 of the Constitutional Court Act as well as the definition of a final judgment that has become conclusive, the subject of constitutional complaints against judicial judgments should be the Supreme Court's decision vacating and remanding the case, not the judgment of the original court that has been confirmed after remand.