헌법재판소 2021. 1. 28. 선고 2018헌바88 결정에 대한 평석: 일본인 재산 몰수를 규정한 군정법령 제33호 등에 대한 위헌소원

The Constitutional Court rendered a decision of constitutionality in 2021 regarding Military Government Ordinance No. 33, which stipulated the confiscation of Japanese property. The Court acknowledged that although the ordinance constitutes genuine retroactive legislation concerning the confiscation of property rights, it exceptionally permitted such retroactivity. This was because the legal status at the time was uncertain and chaotic, resulting in a diminished interest in the protection of legitimate expectations, and because there were overriding and extremely significant public interests justifying the retroactive application of the law. I believe the Constitutional Court’s decision is sound in light of prevailing doctrine and prior case law. However, even in exceptional cases, genuine retroactive legislation is not permissible where it creates new elements of a criminal offense and applies them to past conduct, or where it applies a harsher statutory penalty or a newly created punishment to past conduct; moreover, any exceptions should explicitly include criteria addressing the possibility of recurrence and the risk of abuse. In my view, genuine retroactive legislation should be allowed only when necessary to safeguard the Constitution’s fundamental ideals, to maintain and protect the national community, or to prevent serious infringements of citizens’ fundamental rights.