비상입법자로서의 헌법재판소

Constitutional Court as an emergent Lawmaker

&nbsp;&nbsp;This article addresses whether the Constitutional Court can exceptionally play the role as a emergent lawmaker. That is, the issues on one hand whether the Court can take a necessary provisional legislative action in the tenor of the decision in order to fill legal blank when the Court must declare a statute unconstitutional and void, and when the legislative branch cannot most likely make the alternative statute for the long period, on the other hand how such a action of the Court can be justified.<BR>&nbsp;&nbsp;It is the so called second abortion decision of the Federal Constitutional Court of Germany that causes the trigger of the debate about the issues. The Court took such a necessary temporary legislative action in the tenor of the decision which will be applied until the parliament makes a statute when the Court declared the amended article of the Criminal Act unconstitutional and void. Therefore, the Court played the role as a kind of lawmaker by such a legislative action. The legislative action of the Court can be justified by the situation in which the Court must realize the balancing harmony between the rights of the fetus and the woman, and eliminate the legal blank which is inevitably caused by the decision and cannot be constitutionally admitted.<BR>&nbsp;&nbsp;Naturally, such a role or action superficially violates the principles of separation of powers, rule of law, and nulla poena sine lege. However, it substantially coincide with the spirits of the principles through the justification which is above mentioned. Therefore, it is constitutional. Such a justification can be based on the unwritten emergent competence of the Constitution.