한정위헌결정과 한정합헌·헌법불합치결정과의 관계

A Study on the Relationship between Decision of “Unconstitutional Limitedly” and Decision of “Constitutional Limitedly” and Decision of “Unconformable”

The Decision of “Unconstitutional Limitedly” is a type of decision that makes clear the provision(subject of a judgment)’s certain interpretation among possible multiple interpretations which clearly cannot be agreed with the Constitution and eliminates the legal application according to such unconstitutional interpretation. In the similar manner as the Decision of “Constitutional Limitedly”(Verfassungskonforme Auslegung von Gesetzen) it constitutionally reduces and restricts the content of the provision that is the subject of judgment. Thus, it does not affect the existence of the provision but brings about a binding force which is the legal force that prevents the interpretation, application, or execution of such unconstitutional content. Nonetheless, the Supreme Court has been defying the binding force of the Constitutional Court’s Decision of “Unconstitutional Limitedly.” Previously, the Constitutional Court regarded both the Decision of “Constitutional Limitedly” and the Decision of “Unconstitutional Limitedly” as decision of “qualitatively and partially Unconstitutional.” In other words, when a provision has possibility of multiple interpretations or applications, it can be judged constitutional or unconstitutional by limiting the domain of the application or interpretation. In reverse, the rest of the domain of application or interpretation is interpreted as unconstitutional or constitutional. Thus, the terms the Decision of “Constitutional Limitedly” and the Decision of “Unconstitutional Limitedly” are different expressions that have virtually the same nature. It is the matter of ‘choosing’ the holding “Constitutional Limitedly” or “Unconstitutional Limitedly” expediently, according to the nature of each case. Against this perspective, however, a criticism was proposed that Decision of “Constitutional Limitedly” and Decision of “Unconstitutional Limitedly” are different from each other. Among the types of Decision of “Unconformable”(Unvereinbar), the Application-stopping type is the decision category that can be selected when it is necessary or vital to regulate the case concerned after waiting for the improved provision. If so, the Application-stopping Type Decision of “Unconformable” cannot be considered as an alternative proposal for the Decision of “Unconstitutional Limitedly.” It is because in the case of Decision of “Unconstitutional Limitedly,” the part of content or implication, which the Constitutional Court ruled unconstitutional, is removed from the whole content or implication of the provision and the part which the Constitutional Court ruled unconstitutional loses its validity in the corresponding provision’s content or implication. On the other hand, the Provisional Application Type Decision of “Unconformable,” which postpones the validity of decision of “Unconstitutional” until a fixed point in the future, can be an alternative for the Decision of “Unconstitutional Limitedly.” It is because primarily, in the case of Decision of “Unconstitutional Limitedly,” the area which the Constitutional Court ruled unconstitutional limitedly should be eliminated from the corresponding provision but if there is a special request requiring provisional application, the limited area of the provision can be applied temporarily.