헌법에 위반되는 헌법 시행 전 법률의 효력상실시기

This essay deals with the time of invalidity as laws operating immediately before the commencement of the prevailing Constitution but contravening it under Article 5 of Addenda of the Constitution of Republic of Korea. This essay can be divided into two part. The first part deals with constitutions of four countries and decisions by the final courts with proper jurisdictions about declaration of unconstitutionality on their respective laws. Ⅰ. In South Africa, Article 172 of the Constitution of the Republic of South Africa, 1996 confers on Constitutional Court of declaration of invalidity of any law inconsistent with the Constitution to the extent of its inconsistency, and also confers granting a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that law, but does not provide clearly the time of invalidity existing law operating immediately before the commencement of the Constitution. Instead, the Constitutional Court decides the time of losing validity on and after the date of the commencement of the Constitution. The declaration of the Constitutional Court does have not the formative but the declarative i.e. confirmative effect, but saves the transactions made bona fide during the time between the date of the commencement of the Constitution and date of declaration of invalidity by the Constitutional Court. In India, Article 13 of the Constitution of India provides as all laws in force which are inconsistent with the provision of Part Ⅲ Fundamental Rights shall be void to the extent of such inconsistency. And Article 372 as a special provision makes as all the law in force immediately before the commencement of Constitution shall continue in force until altered or repealed or amended by a competent Legislature or other competent authority. Supreme Court of India takes the position, as in Keshavan Madhava Menon v The State of Bombay that the law did become void not in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsiatency” with the provisions of Part III which conferred the fundamental rights on the citizens, and as in KK Poonacha v Karnataka that if a law is valid when made but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency, then when the shadow is removed, the impugned Act is freed from all blemish or infirmity. In Hong Kong, Article 8 of The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China provides as following: the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene the Basic Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region. But Article 158(3) specially restricts the judicial power of interpretation. The power of interpretation of this Law is vested in the Standing Committee of the National People's Congress. The judicial power of interpretation is derived from the authorization by the Standing Committee, though the authorization of the Standing Committee is mandatory by the Basic Law. But the courts have to seek the interpretation to the Standing Committee if the provisions of the Basic Law are those concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases. The Court of Appeal of Hong Kong, though not supreme court of Hong Kong, opined that judicial power to engage the technique of prospective overruling is not mandated by the Basic Law, but retroactive overruling should be used ‘altogether exceptionally’, and the notion of exceptionality require to protect the legal relationships established in good faith. In Trinidad and Tobago, Section 4 of the Constitution of the Republic of Trinidad and Tobago recognizes and declares the fundamental human rights and freedoms and section 5 thereof prohibits the abrogation, abridgment or infringement of any of those rights and freedoms. But Section 6 restricts the application of Sections 4, 5 as following: “(1) Nothing in sections 4 and 5 shall invalidate- a. an existing law; b. an enactment that repeals and re-enacts an existing law without alteration; or c. an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right. (2) Where an enactment repeals and re-enacts with modifications an existing law and is held to derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right then, subject to sections 13 and 54, the provisions of the existing law shall be substituted for such of the provisions of the enactment as are held to derogate from the fundamental right in a manner in which or to an extent to which the existing law did not previously derogate from that right.” The purport of Section 6(2) is to reduce the possibility of unconstitutionality. Though Matthew v The State (Trinidad and Tobago) is a case for mandatory death penalty in Trinidad and Tobago, Privy Council decided that, although the existence of the mandatory death penalty will not be consistent with a current interpretation of sections 4 and 5, it is prevented by section 6(1) from being unconstitutional. It will likewise not be consistent with the current interpretation of various human rights treaties to which Trinidad and Tobago is a party. It follows that the decision as to whether to abolish the mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of Trinidad and Tobago. Ⅱ. In the second part, the writer after the groping for the possibility of introduction of those jurisprudence. First, the time of invalidity as laws operating immediately before the commencement of the prevailing Constitution but contravening it under Article 5 of Addenda of the Constitution of Republic of Korea is that of the time of commencement of the Constitution. Effect of invalidity is not retroactive. Second, The extent of invalidity is toward the citizen of Korea but not toward the foreigner. Thirdly, though the Constitution of Republic of Korea does not confer expressly the power of modification to the Constitutional Court, the power of modification to the Court must be conferred by interpretation in order to prevent the possible frequent legal vacuum owing to declaration of constitutionality. This way may reduce the rigidity of fixation of time of invalidity of existing law under Article 5 of Addenda of the Constitution.