판례평석 : 형벌규정과 헌법소원의 직접성 - 헌재 2016. 11. 24. 2013헌마403 -

Penal Code and the Directness of the Constitutional Complaint Our Constitutional Court recently ruled that penal code(clause) does not have directness, one of the requirements in the constitutional complaint, after prosecutor’s indictment in the 2016. 11. 24. 2013Hun-ma403 case. Whereas 4 Justice’s dissenting opinion admit the directness in this case saying that the penal code directly infringe individual’s fundamental right without meditation of concrete executive action. Both opinion, however, seemed to have a thing in common that directness requirement and supplementary requirement are the same thing in the constitutional complaint against the penal code. Directness requirement and supplementary requirement is a different one despite having the same function that allots judicial review between constitutional court and general courts. Our Constitutional Court Act §68(1) provides that “if any remedy is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes. But In case constitutional complaint against penal code before prosecutor’s indictment is allowed to a person, he cannot be relieved. Because there is no explicit clause that admit the retroactive effect of the unconstitutional decision, or upholding decision in the §68(1) constitutional complaint unlike that unconstitutional decision against penal code in the §41 and §68(2). So there is no reason to admit directness in the constitutional complaint against penal code in the light of this point. If so we should think of some alternatives. Administrative Litigation Act §21 provides alternation a revocation litigation to a party litigation. And Constitutional Court Act §40 provides Administrative Litigation Act shall apply mutatis mutandis to a constitutional complaint. I suggest KCC do not dismiss a complaint in this case but alter to a constitutional complaint of §68(2).