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20 J. Korean L. 1 (2021)

handle is hein.journals/jkorl20 and id is 1 raw text is: Journal of Korean Law I Vol. 20, 1-55, February 2021

Decision of the Korean Constitutional Court of
Nonconformity of Statute with the Constitution and
the Subsequent National Assembly Legislative
Process in Korea's Constitutional Democracy'*
Woo-Young Rhee**
Abstract
The decision of nonconformity of the statute with the Constitution is a type of decision
rendered by the Korean Constitutional Court, notwithstanding the silence of the Constitutional
Court Act of Korea pertaining to such type of decision or the ground therefor. The
Constitutional Court, by way of nonconformity decision, holds that the statutory provision at
issue is not in conformity with the Constitution, without directly holding that the statutory
provision is outright unconstitutional to become null and void upon issuance of the decision,
out of deference to the lawmaking authority of National Assembly and, in certain situations, for
the stability of law in its application. The holding of nonconformity decision of the Korean
Constitutional Court varies in that the Constitutional Court either simply declares the
nonconformity of the statutory provision with the Constitution, or renders the statutory
provision at issue to be tentatively applicable through a designated date then lose effect, or yet
stays the application of the statutory provision through a designated date with the possibility of
its losing effect on a specific date should National Assembly fail to revise the statute by the time
limit. The Korean Constitutional Court's nonconformity decision likewise urges National
Assembly to revise the relevant statute in accordance with its holding and the stated grounds
therefor often with designated time limit, shifting the burden to timely remove the declared
unconstitutionality of the statute onto National Assembly. Whether and to which extent such
recommendation or urging by the Constitutional Court to revise the statute binds National
Assembly has yet to be determined and established, with such ensuing normative and
institutional issues as the nonconformity decision's binding effect and retroactivity. A
particularly complex challenge is observed in the case of National Assembly's failure to meet the
designated time limit, although National Assembly has revised the relevant statutes in over
95% of such instances through the end of the session of the 20 National Assembly (2016-2020).
The Korean Constitutional Court tends to render nonconformity decision primarily for the
violation of constitutional principle of equality and for the failure to satisfy the individual
* An earlier version of this article was presented at the 15th Asian Law Institute
Conference in 2018. The research for this paper was sponsored by the Academic Research
Fund of Seoul National University Law Research Institute funded by the Law Development
Fund of Seoul National University, for the year 2020.
** Professor of Law, Seoul National University School of Law.

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