Whereas Our Constitution Article 101(1) provides that Judicial power shall be invested in courts composed of judges. Whereas Article 107(1) provides that when the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof.
With regard to the above said clauses, 2012. 12. 27. Korean Constutional Court ruled that a claim for unconstitutionality in the context is lawful basically, reversing its own precedent that a claim for the unconstitutionality in the context is unlawful basically but lawful exceptionally in the following 3 cases: (ⅰ) in case that can be taken as a claim for the indefiniteness of provisions on review, (ⅱ) in case that provisions on review which are concretized by the ordinary court are unconstitutional, (ⅲ) in case that can be taken as a claim for the provisions on review and the like(2011Hun-Ba117)
But the above-said decision ought to be criticized for the following reasons.
(ⅰ) the decision conflicts with the Constitution Article 101(1) and the Constitutional Court Act Article 68(1) that prohibits decision of the ordinary court from adjudication on constitutional complaint.
(ⅱ) it is not clear that tell interpretation from connotation. in this case whether the applicant comes under the government official in the Criminal Act 129 is not the problem of the law but the connotation of the law.
(ⅲ) KCC's ruling that interpretation that nonofficial commissioner without fictitious-government official clause comes under the government official who is the subject of the bribery.
(ⅳ) according to the established Supreme Court's precedent, the applicant can't be protected through a retrial. Revision of the Constitutional Court Act that permits the ministerial arm of the Constitutional Court's decision is necessary.