헌법재판에서의 가처분의 실질 및 형성력의 문제- 헌법재판소 2024. 10. 14. 선고 2024헌사1250 결정 -

In this case, the same reasoning as in the previous decision of the Constitutional Court was used to uphold the necessity of the injunction. In the Civil Execution Act, preliminary injunctions to establish a temporary position can be classified as declaratory, performative, or formative, depending on the status sought and the content of the injunction. Only formative injunctions, where the main judgment is a formative judgment, have substantive legal formative power. Therefore, it is difficult to recognize the formative power of preliminary injunctions that have the substance of provisional injunctions without explicit provisions. A preliminary injunction suspending the effectiveness of a law, which is the same as a suspension of execution under Article 23(2) of the Administrative Litigation Act, may be considered to have formative power by applying Article 29 of the Administrative Litigation Act, but it is worth reconsidering whether the Article 40(1) of the Constitutional Court Act can be applied to effectiveness rules beyond procedural norms. In principle, the role of the Constitutional Court should be limited to deciding constitutional disputes that arise in the context of political conflicts, and not to actually creating substantive laws or institutions without a concrete basis, such as this case. Problems arising from the expiration of the terms of constitutional judges should be resolved by amending the Constitution or the Constitutional Court Act.