형벌조항에 관한 위헌결정의 소급효에 대한 비판적 고찰 = A critical study on the retroactive effect of the unconstitutional decision about the criminal clause

다국어 초록 (Multilingual Abstract)

More than 20 years have passed since the Constitutional Court was established in 1988. A lot of decisions have been decided by the Constitutional Court. Among them there are many unconstitutional decisions. As more than 20 years have passed since 1988, important matters that the law-makers have not expected are found. It is one of them that the retroaction of unconstitutional decision about the criminal law or clause. We make a clear distinction between the case that the Constitutional Court ruled no decision and the case that the Constitutional Court ruled a constitutional decision. While the Constitutional Court`s unconstitutional decision is applied retroactively to the legislation of the law or the clause, the unconstitutional decision should be applied retroactively up to the date of the last constitutional decision in the latter case. I regard this interpretation of the constitutional Court law as reasonable in the point that it realize the judicial justice and the legal stability. In this case the Constitutional Court should make this clear in the sentencing. The law-maker should amend the Constitutional Court law to reform present absurdities.