시행유예기간을 둔 법령에 대한 헌법소원의 청구기간 기산점에 관한 판례평석 - 헌재 2020. 4. 23. 2017헌마479 결정을 중심으로 -

If point of time for effectivation and point of time for application of the Act are different, the infringement of fundamental rights should be considered as the applicable time of the Act. Even if the fundamental rights are limited because of the amendment of the law, where the grace period is prescribed by the attachment, the subject of such fundamental rights shall not be subject to any restrictions on the exercise of fundamental rights during the grace period. Therefore, during the grace period, there is no room for the revised legislation to be applied to the subject of fundamental rights. At this time, enforcement date of the amended legislation would not be the starting point for the request period. And if infringement of fundamental rights is clearly expected, exceptions to nowness requirements can be granted, at which time a petition can be filed without having to wait for infringement of fundamental rights. If the statute takes effect and it does not impose any restrictions on the exercise of the fundamental rights, point of time for effectivation shall not be taken as the starting point of the request period. This is because “the date on which the cause corresponding to the Act arises”, the starting point of the request period, means “the day on which the fundamental rights are violated by applying the discipline of the Act specifically and realistically”. Therefore, a constitutional complaint for a statute with a grace period, in cases where grounds falling under the Act arise after the Act enters into force, shall be filed within 90 days from the date on which the grace period expires, or within one year from the date on which the grace period expires.