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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.
Section 2 Petitions Concerning Constitutionality of Laws Lodged by Courts
Article 55
(Petitions Lodged by Courts)
A court which strongly believes, on reasonable grounds, that an applicable statutory law on whose validity depends the court's decision of a pending case is in contravention of the Constitution may lodge a petition with the Constitutional Court for a judgment declaring the impugned applicable law unconstitutional.
Article 56
(Contents of Pleadings Submitted by Courts)
Petitions under this Section shall be submitted in writing and include the particulars below:
(1) the petitioning court and the name of the petitioning judge thereof;
(2) claims;
(3) the extent to which the impugned statutory law contravenes the Constitution and the relevant constitutional provisions or basic rights protected under the Constitution;
(4) the grounds for the petition, the showing that the impugned statutory law is necessary for the decision on the pending case, and the petitioning court's submission indicating its strong belief that the impugned statutory law is unconstitutional on the basis of objective reasons; and
(5) the titles of the annexes and the number thereof.
Article 57
(Suspension of Proceedings of Underlying Cases)
When the petitioning court suspends the proceedings of the underlying case by a ruling on the grounds that it lodges a petition with the Constitutional Court under this Section, it shall include its pleading submitted in accordance with the preceding Article in the suspension ruling. In case of emergency, the petitioning court may take necessary measures.
Article 58
(Application mutatis mutandis of Articles 51 to 54)
Articles 51 to 54 shall apply mutatis mutandis to the cases under this Section.
Section 3 Constitutional Complaints
Article 59
(Petitions for Constitutional Complaints)
After exhaustion of all ordinary judicial remedies, any person who believes that a final court decision that finds against her or him or a legal provision applied in such a court decision contravenes the Constitution may lodge a petition with the Constitutional Court for a judgment declaring the decision or the impugned legal provision unconstitutional.
Petitions under the preceding Paragraph must be lodged within the peremptory period of six months after the service of final decisions.
Article 60
(Contents of Pleadings of Constitutional Complaints)
Petitions under this Section shall be submitted in writing and include particulars below:
(1) the name, the identification document number, and the domicile or the residence of the petitioner, and the correspondent address to which service shall be made; in the case that the petitioner is a legal person or an unincorporated association, its name and location;
(2) the name, the identification document number, and the domicile or the residence of the statutory agent, the representative or the administrator, where applicable;
(3) the name, the occupation, and the domicile or the residence of the advocate, where applicable;
(4) claims;
(5) the extent to which the legal provision applied in a final court decision or the decision itself contravenes the Constitution and the relevant constitutional provisions or basic rights protected under the Constitution;
(6) the grounds for the petition and the petitioner's submission; and
(7) the relevant final court decision and the evidence which proves the observance of the peremptory period; and
(8) the titles of the annexes and the number thereof.
Article 61
(Admissibility of Constitutional Complaints)
Petitions under this Section are admissible insofar as they concern principles of constitutional significance or it is necessary to satisfy the petitioners' basic rights protected under the Constitution.
The Chamber, whose member is the reporting Justice in respect of the petition, may dismiss it by a unanimous ruling for which reasons must be given. In the case that no such unanimous ruling can be made, the admissibility of the petition shall be decided by the Constitutional Court.
If three or more Justices, within 15 days after the preceding unanimous dismissal ruling has been made, consider that the petition is admissible, the Constitutional Court shall decide on its admissibility. The dismissal ruling shall otherwise be published and served on the petitioner promptly.
Article 62
(Declaring a Final Court Decision or a Law Unconstitutional in the Holding of a Judgment)
It the Constitutional Court finds that the petition is well grounded, it shall declare in the holding of the judgment that the impugned final court decision is unconstitutional and thus vacated, and the matter is remanded to the competent court. If the Constitutional Court finds that the legal provision applied in such a final court decision contravenes the Constitution, it shall further declare the impugned legal provision unconstitutional.
Articles 51 and 52 shall apply mutatis mutandis to the judgments under the preceding Paragraph.
Article 63
(Application mutatis mutandis of Voidance Provision)
Articles 53 shall apply mutatis mutandis to cases where laws are voided immediately by the Constitutional Court in judgments under this Section.
Article 64
(Application mutatis mutandis of Voidance after Time Periods Provision)
In a judgment where a time period is set for the impugned legal provision to lapse, the competent court to which the underlying case of the relevant final court decision is remanded shall decide in accordance with the ratio decidendi of the judgment of the Constitutional Court by which the impugned legal provision is declared unconstitutional, notwithstanding the time period set for the lapse of the legal provision declared unconstitutional, unless the holding of the judgment otherwise decides.
Where a legal provision is set to lapse within a time period under the preceding Paragraph, Article 54 shall apply mutatis mutandis to cases other than the relevant underlying case that are pending before each court.
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