형벌법규에 대한 권리구제형 헌법소원에서의 직접성 요건에 대한 재조명

The recent 2013-Hunma-406 decision is not a change in the existing precedent. It has to be known that the Constitutional Court has from early on established dualistic precedents (i) acknowledging, on one hand, that people in general are immediately subject to the limitations of fundamental rights without need for enforcement action of the prohibitive duty inherent in the penal statute itself, and (ii) for those who are parties to the criminal procedure or who at least have a realistic possibility of being one, on the other hand, denying immediate infringment of fundamental rights on the basis of treating the penal sentence as an enforement action. The above decision, in the process of expanding its scope of application, applies not only to cases where public prosecution is filed later, but also to cases of investigations and suspension of prosecution with little relevance to “imposition of punishment” which was originally the core basis of enforcement activism. Consistency with the logical structure is significantly impaired. The root of this problem stems from the fact that Article 75 of the Constitutional Court Act, above all, does not have an explicit provision on the right to request a retrial in cases where a criminal statute was struck down in a constitutional complaint adjudication for relief of rights. It might be a risk that must be prevented even if it means sacrificing logical consistency to some extent. On the other hand, it can presumed that the position of the Constitutional Court which has tried to refrain from mentioning the non-existence of right to retrial as far as possible has also been a factor resulting in the dependency on immediacy. An alternative solution to this problem can be to first correct the recent precedent which has denied immediacy at the slightest possibility of actual penal procedure, to see that there is an executive action only with the confirmation of a conviction, thereby reducing disputes about immediacy itself. This must be done in parallel with making use of the existing precedents treating the time of indictment as the departing point for the complaint period. In addition, it is suggested that the confirmation of a conviction should be viewed as a ground for extinction of personal worthiness of protection and not immediacy, the basis for which should be found in the acknowledgment that there is no provision on the right to request a retrial.