법무연구 6권(2016.8)

변형결정을 둘러싼 헌법재판소와 대법원의 갈등문제 해결방안 / 성중탁 33 A study about Consideration of the conflict surrounding the Supreme Court and the Constitutional Court determines the validity of the decision variant(limited unconstitutional) Sung, Joong Tak* 39) Literal of decision might be not sufficient to deal with all the various problems soon became realized. So from the early time on, the Constitution Court introduced modified forms of decisions such as those of ‘limited constitutionality’, ‘limited constitutionality’, and ‘nonconformity to the Constitution'. It is difficult, however, to determine which part of the statutory provision at issue is indeed inconsistent with the Constitution(unconstitutional) since no opinion commands binding force with 6 supporting Justices. Each opinion possesses perhaps only a persuasive power. For the people, for the National Assembly, and for the trial courts, it is desired of the Constitutional Court to give an undivided message for the sake of clarity principle, particularly in such a politically sensitive area of law as statutory nighttime ban on rallies and demonstrations involving freedom of expression. Naturally, it is also desirable for Chief Justice to possess ability to play a moral, jurisprudential or intellectual leadership role influencing over associate Justices in having the Constitutional Court reach a consensus or 6 votes majority. To a certain extent, failure in parliamentarism contributes to judicialization of politics phenomenon in Korea with increased number of constitutional litigations filed at the Constitutional Court. Now, the suspended unconstitutionality decision, however, passes the buck on the legislature. Jurisprudentially definition of night time is not easy to legislate. The decision * Professor of Law School Kyungpook National UniversityㆍAttorney at lawㆍJD