국회 본회의 의결을 결여한 자구정리안의 법적 효력 -헌법재판소 2009.6.25. 2007헌마451 결정의 연구- (Legal Validity of Wording Arrangement Bill without Passing of Assembly Plenary Session -A Case Study of the Constitutional Court’s Decision(2007 Hunma 451)-)

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초록

This paper is discussed about the Constitutional Court’s decision (2007 Hunma 451) that deals with the legislation-procedural constitutionality of § 37 ① 7. (prohibition clause of money changing business) of the Game Industry Promotion Act. This clause passed the National Assembly plenary session on 22 Dec. 2006, but was promulgated by the government on 19 Jan. 2007, in different wording compared with the bill passed the National Assembly plenary session. The National Assembly Secretariat arranged the wording of the bill passed the National Assembly plenary session without explicit delegation of the Assembly plenary session, on the basis of practice.
The Constitutional Court declared the due process principle applied on the legislation process. And it is possible to arrange the wording of bills after passing the Assembly plenary session if there is the delegation of the Assembly plenary session according to § 97 of the National Assembly Act. The arranging wording should be taken place within not substantially changing meaning of bills. This case is estimated that the Assembly plenary session made an implied consent, because of long practices and not claiming against practices. But the opinions of the Constitutional Court was divided on whether the arranging wording of the prohibition clause of money changing business was within not substantially changing meaning of bills. The majority opinion said that the arranging wording of the prohibition clause of money changing business was the same meaning if it was interpreted restrict. The minority opinion said that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session, therefore, the part of expanded meaning shall be unconstitutional.
In fact, there was no difference between majority and minority opinion in the conclusion that it was unconstitutional that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session. However, the majority opinion considered two clauses as the same meaning. This opinion of constitutionality is unstable, because it depends on interpretations. Rather, the opinion of partial unconstitutionality is more rational, because it claims against misconceived legislation practices and prevent from occurring disputes about interpretation in future.

영어초록

This paper is discussed about the Constitutional Court’s decision (2007 Hunma 451) that deals with the legislation-procedural constitutionality of § 37 ① 7. (prohibition clause of money changing business) of the Game Industry Promotion Act. This clause passed the National Assembly plenary session on 22 Dec. 2006, but was promulgated by the government on 19 Jan. 2007, in different wording compared with the bill passed the National Assembly plenary session. The National Assembly Secretariat arranged the wording of the bill passed the National Assembly plenary session without explicit delegation of the Assembly plenary session, on the basis of practice.
The Constitutional Court declared the due process principle applied on the legislation process. And it is possible to arrange the wording of bills after passing the Assembly plenary session if there is the delegation of the Assembly plenary session according to § 97 of the National Assembly Act. The arranging wording should be taken place within not substantially changing meaning of bills. This case is estimated that the Assembly plenary session made an implied consent, because of long practices and not claiming against practices. But the opinions of the Constitutional Court was divided on whether the arranging wording of the prohibition clause of money changing business was within not substantially changing meaning of bills. The majority opinion said that the arranging wording of the prohibition clause of money changing business was the same meaning if it was interpreted restrict. The minority opinion said that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session, therefore, the part of expanded meaning shall be unconstitutional.
In fact, there was no difference between majority and minority opinion in the conclusion that it was unconstitutional that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session. However, the majority opinion considered two clauses as the same meaning. This opinion of constitutionality is unstable, because it depends on interpretations. Rather, the opinion of partial unconstitutionality is more rational, because it claims against misconceived legislation practices and prevent from occurring disputes about interpretation in future.

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