헌법재판소법 제47조 제3항 단서의 위헌성에 대한 연구-헌재 2016. 4. 28. 2015헌바216 결정의 평석을 겸하여-

Clause 2, Article 47 of the former Constitutional Court Act provided that the provisions in the decision on unconstitutionality regarding penal laws shall lose its effect retroactively. However, it kept silent about the point of retroactivity and whether the retroactive effect would be limited. Thus, discussions have been held concerning whether the retroactive effect of the decision on the unconstitutionality of penal laws can be limited through interpretations. Also, discussions on the revision of the same law for the reason of the prevention of legal instability have been actively held. Consequently, as the condition of Clause 3, Article 47 of the Constitutional Court Act, providing, “where a decision of constitutionality has previously been made in a case to which any of such acts or provisions, such acts or provisions shall lose effect retrospectively on the following day of the date on which such decision was made” was newly established on May 20, 2014, the retroactive effect of the decision of unconstitutionality regarding provisions of punishment was partially limited. Subsequently, the Constitutional Court decided that the same provision does not violate the Constitution, arguing that this is not contrary to the principle of equality, since there is a reasonable cause for the treatment of penal laws on which a decision of constitutionality has previously been made, limiting the retroactive effect of the decision on unconstitutionality, differently from the case where no decision of constitutionality has previously been made. It is presumed that it is hard to deny the reasonable cause in limiting the retroactive effect of the decision on unconstitutionality regarding provisions of punishment to secure social trust and legal stability of the norms accumulated till now. However, the fact there is a reasonable cause in limiting the retroactive effect does not mean any arbitrary discrimination according to the limitation of the retroactive effect is reasonable, because discrimination between comparison groups should not be arbitrary. This study notes that the condition of Clause 3, Article 47 of the Constitutional Court Act has possibly limited unconstitutionality. Despite the date of the crime is same or later, a conviction can be finalized earlier since investigation, prosecution and trial are achieved promptly or an appeal is withdrawn. Prohibiting a retrial for the reason that the confirmation of a conviction precedes the following day of the previous decision of constitutionality regarding the relevant penal laws is arbitrary discriminatory treatment. In terms of the legislative approach, it is desirable to revise Clause 4, Article 47 of the Constitutional Court Act so that a retrial is allowed only for a final conviction of a crime that occurred after the following day of the date of the previous decision of constitutionality.