헌법불합치 결정을 받은 형벌규정의 효력

• 영문명: The Effect of Penal Provisions by a Decision of Constitutional Nonconformity
• 발행기관: 한국형사판례연구회
• 저자명: 이강민
• 간행물 정보: 『형사판례연구』제31권, 43~67쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

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.

목차

◇ 대상판결: 대법원 2020. 5. 28. 선고 2017도8610 판결

[연구]

Ⅰ. 들어가며

Ⅱ. 헌법불합치 결정의 효력

Ⅲ. 잠정적용 헌법불합치 결정에 따른 형벌규정의 효력 및 법원의 조치

Ⅳ. 결론

참고문헌

키워드

헌법불합치결정 위헌결정 형벌조항 소급효 잠정적용 decision of constitutional nonconformity unconstitutionality decisions Penal Provisions the retroactive effect provisional application