명령․규칙에 대한 헌법불합치결정

The Constitutional Court of Korea(hereafter the ‘Court’) has rendered two decisions, ruling that administrative decrees at issue were incompatible with the Constitution. The Decision of Nonconformity to the Constitution(hereafter the ‘Decision’) originally reviews the constitutionality of statutes. Administrative decrees and regulations, however, are distinguished from statutes in various respects. The reason why the Court renders the Decision is to exclude application of Article 47.2 of the Constitutional Court Act, part of which stipulates when the law becomes no longer effective and to impose the duty to improve the legislation on the lawmakers. The Court hands down the Decision to avoid rendering unconstitutional statutes immediately ineffective(become retroactively ineffective as an exception) and not to change the legal system on its own but to leave it up to the legislators. There exists a qualitative disparity between the rule-making power of rule-makers of administrative decrees․regulations and that of the legislature. Accordingly, deference to the rule-making power of administrative decrees․regulations-makers is not much required. Further, the Decision is not necessary to impose the duty to improve administrative decrees․regulations as rule-makers of administrative decrees․regulations are also the executors of the same. Nonetheless, a dual standard of unconstitutionality review has little to do with permissibility of the Decision in relation to administrative decrees and regulations. During the time from when a decision finds the challenged administrative decrees and regulations unconstitutional until the same decrees and regulations are improved, there is also little possibility for such decision to give rise to legal conditions that would be impermissible. A decision of unconstitutionality against administrative decrees and regulations rarely causes legal gaps or confusion as well. Therefore, these grounds are not sufficient to justify the Decision on administrative decrees and regulations. In short, the Court should render the Decision in relation to administrative decrees and regulations only when it can successfully prove the necessity of such Decision.