A Critical study on the Conflicting Views of the Constitutional Court and the Supreme Court on the Binding Effect of Limited Unconstitutionality Decisions

The aim of this study is to critically examine whether the arguments of the Constitutional Court and the Supreme Court for limited jurisdiction are based on a common language and understanding, and whether each argument is valid within the current constitutional framework and the current judicial system, to establish whether there is an alternative way of limiting what both bodies can claim within the current constitutional court system, thereby reducing the conflict between the two bodies in constitutional review and setting functional limits. To this end, the so-called limits of the judges' powers of Rechtsfindung and Rechtsfortbildung will be identified, and the justification for the permanence of the Constitutional Court's decisions in the current legal system will be examined. A review of the current understanding of legal interpretation by the Constitutional Court and the Supreme Court reveals a significant confusion between the interpretation of the law and the filling of defects in the law. A prime example of this is the 2012 case challenging the constitutionality of Article 23 of the Supplementary Regulations to the former Restriction of Special Taxation Act. In this case, the Constitutional Court issued a limited unconstitutionality decision on the effectiveness of the supplementary provisions of the law that became effective, and the Supreme Court and other courts determined that such decisions are not binding on the courts. According to the rulings of the Supreme Court and the Constitutional Court, the judgment on the possibility of inferring the legislator's intention in the case where there is a tax lapse provision in the absence of a parent law is occupied. This issue, which both organizations as an issue of legal interpretation regarding the effectiveness of an invalidated law, is actually not an issue of ‘Rechtsfindung’ but an issue of ‘Rechtsfortbildung’ in which a judge can claim the supplementation of the law for the defect in the law. If we conceptually distinguish between ‘Rechtsfortbildung’ that supplements the defects of the law and ‘legal interpretation’ as ‘Rechtsfindung’, the limit of the possible meaning of the legal text is the limit of legal interpretation, and Rechtsfortbildung begins at the point where it exceeds this limit. If it is carried out within the framework of the fundamental plan or purpose theory of the law itself, it corresponds to intrinsic Rechtsfortbildung as a supplement of defects, and if it is carried out beyond the purposive plan of the law itself but within the framework and guiding principle of the entire legal order, it becomes transcendental Rechtsfortbildung. In general, as a judge cannot refuse to render a judgment, it is within the judge's power to interpret the law and fill in defects. However transcendental law-making that goes beyond filling in defects requires additional justification. While the Supreme Court can exercise its ‘law-making’ power to pursue constitutional justice and equity, it is necessary to recognize that if the filling of ‘defects in the law' is not constitutionally justified, it can be controlled through specific normative controls by the Constitutional Court. In this case, the Constitutional Court's limited constitutionality decision should be understood as a matter of constitutional justification of ‘law-making' rather than a matter of interpretation. If the above understanding is shared by the Constitutional Court and the Supreme Court, the conflict between the Constitutional Court and the Supreme Court over limited constitutionality can be reduced.