헌법재판소 결정의 법률요건적 효력

The effect of a judgment is divided into its original effect and its derivative effect. The finality of a decision, including res judicata, belongs to the original effect along with enforcement and formation power, and the effect of legal requisite, the reflective effect and the factual effect are called the derivative effect. The effect of legal requisite means that the law creates certain substantive legal effects with the existence of a final judgment as a legal requisite. The effect of legal requisite is not a general effect of judgment. However, the effect of legal requisite is an effect in accordance with the provisions of the law, which is important in ensuring the effectiveness of the judgment. There are also a few cases where the effect of legal requisite occurs in relation to the decision of the Constitutional Court. The effect of the Constitutional Court's decision, which falls under the effect of legal requisite, includes the invalidation of the law due to the decision of unconstitutionality (Article 47 (2) and (3) of the Constitutional Court Act), restrictions on taking of public office and the possessing professional jobs due to impeachment decisions, prohibition of establishing a substitute party, using the same name and restituting the remaining property due to the decision to dissolve the party. The effect of legal requisite will extend not only to the parties concerned in the case at issue but also to the third parties. This differs from the power of finality, including res judicata which influences only the parties or the Constitutional Court and also differs from the binding effects that affects other governmental institutions only. The objective scope of the legal-requisite effect is determined by the substance of the substantive law change prescribed by the relevant provisions. Since the legal-requisite effect extends beyond the parties and the Constitutional Court to other government agencies or third parties, the general public, the effect must be clearly identified or must be able to be confirmed. Therefore, the existence of a final judgment, which is a legal requirement, must be confirmed through the holding. The validity of the legal-requisite effect presupposes a decision of the Constitutional Court. Therefore, the effect occurs when the decision of the Constitutional Court prescribed by the legal requirements is established. In other words, if the Constitutional Court renders a decision, the legal-requisite effect arises as of the sentence of the judgment (Article 40 (1) of the Constitutional Court Act, Article 205 of the Civil Procedure Law).