헌법불합치 결정을 받은 형벌규정의 효력

The Effect of Penal Provisions by a Decision of Constitutional Nonconformity

The Supreme Court has taken it that regarding the provisions of the Act on Penalty, the Constitutional Court’s decision of unconstitutionality is a modified decision, but an unconstitutional decision and so the courts should sentence innocence by applying Article 325 of the Criminal Procedure Act because that statutory provision is retroactively invalid, However, when a modified form of unconstitutional decision is made on the penalty clause and the application is ordered by the legislative deadline, the question is how the court should make a judgment. In addition, if the legislative deadline for amendment has passed but the legislation has not been passed, the issue becomes whether to acquit or acquit. Considering the legal vacuum and preventive function of the penal provisions, it is desirable to declare the penal provisions constitutional or unconstitutional. However, the retroactive effect resulting from the decision of unconstitutionality of the penal provisions is not absolute. Therefore, the limitation of retroactive effect can be considered. Considering the cause of the unconstitutionality of the penal provisions, the retroactive effect is recognized if there are inherent limitations of the law itself. However, it is possible to restrict retroactive effects in the case of external and socio-environmental factors, such as simply prohibiting excessive legislation. However, penal provisions that have been determined to be inconsistent with the constitution, which are provisionally applied, are still in effect until the legislative deadline. Therefore, in that case, a conviction must be made, and thereafter a judgment of acquittal must be pronounced.