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Chapter Law Content

Chapter III. Petitions Concerning Constitutionality of Laws and Constitutional Complaints
Section 1 Petitions Concerning Constitutionality of Laws Lodged by State Organs and Legislators
Article 47
(Requirements for Petitions Loged by Highest State Organs)
A highest state organ which, in the exercise of its powers or on account of its subordinate agency's exercise of powers, considers that the applicable law is in contravention of the Constitution may lodge a petition with the Constitutional Court for a judgment declaring the impugned law unconstitutional.
A subordinate agency which, in the exercise of its powers, considers that the applicable law is in contravention of the Constitution may request its superior agency to lodge the petition referred to in the preceding Paragraph.
Paragraph 1 applies mutatis mutandis to the independent agencies which are equivalent to second-level agencies as provided for by the Basic Code Governing the Central Administrative Agencies Organizations to the extent that they independently exercise powers within their competences.
Article 48
(Principle of Constitutional Petition as the Last Resort)
No petitions under the preceding Article are permissible if the relevant highest state organ can resolve the applicable law's suspected contravention of the Constitution within its competence.
Article 49
(Petitions Lodged by Legislators)
A quarter or more of the incumbent Legislators who, in the exercise of their powers, believe that the relevant statutory law is in contravention of the Constitution may lodge a petition with the Constitutional Court for a judgment declaring the impugned statutory law unconstitutional.
Article 50
(Contents of Pleadings Submitted by State Organs and Legislators)
Petitions under this Section shall be submitted in writing and include particulars below:
(1) in cases where the filing party is a highest state organ, the name of the petitioning organ, its representative and location; in cases where the filing parties are Legislators, the names and the domiciles or the residences thereof, and the correspondent address to which service shall be made;
(2) the name, the occupation, and the domicile or the residence of the advocate, where applicable;
(3) claims;
(4) the extent to which the impugned law contravenes the Constitution and the relevant constitutional provisions or basic rights protected under the Constitution;
(5) the grounds for the petition and the petitioner's submission; and
(6) the titles of the annexes and the number thereof.
Article 51
(Declaring a Law Unconstitutional in the Holding of a Judgment)
If the Constitutional Court holds that the impugned law contravenes the Constitution, it shall declare the impugned law unconstitutional in the holding of the judgment.
Article 52
(Voidance of Unconstitutional Laws)
The impugned law which is declared unconstitutional and is voided in a judgment shall cease to have effect from the date the judgment coming into force, unless the Constitutional Court, in the holding, makes a declaration of retrospective voidance or declare it void after a certain period of time.
In a judgment which sets a time period for the laws to lapse, the time period set for statutory laws may not exceed two years; the time period set for secondary laws may not exceed one year.
Article 53
(Effect of Voidance on Pending Cases before Other Courts)
Where the applicable laws are declared void immediately, all the cases pending in any court are to be adjudicated in accordance with the ratio decidendi of the judgment of the Constitutional Court
The Attorney General shall, either on his own motion or the defendant's, file an extraordinary appeal in respect of criminal decisions which have become final prior to the rendering of the judgment of the Constitutional Court, if the law voided thereby is the law applied in such decisions.
Other than those specified in the preceding Paragraph, the legal effect of decisions that have become final, except otherwise provided by the law, will not be affected by the judgment of the Constitutional Court even if the law voided thereby is the law applied in such decisions. Notwithstanding, where the enforcement of such decisions has not been started or has already started but not yet finished, the enforcement shall be discontinued to the extent that it is bound by such a judgment of the Constitutional Court.
Article 54
(Effect of Voidance after Time Periods on Cases Pending before Other Courts)
In a judgment where a time period is set for the impugned statutory law to lapse, except otherwise declared in the holding of the judgment, all courts shall, before the set time period expires, continue to apply the impugned statutory law to adjudicate cases. Notwithstanding, after balancing the protection of human rights and public interest, the court may, on its own motion or the party's, suspend the proceedings by a ruling, when necessary, and, upon the amendment of the impugned statutory law, resume the proceedings and adjudicate such cases in accordance with the amended law.
A ruling denying the motion under the preceding Paragraph is subject to interlocutory appeals.
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