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20 J. Korean L. 1 (2021)

handle is hein.journals/jkorl20 and id is 1 raw text is: Journal of Korean Law I Vol. 20, 1-55, February 2021 Decision of the Korean Constitutional Court of Nonconformity of Statute with the Constitution and the Subsequent National Assembly Legislative Process in Korea's Constitutional Democracy'* Woo-Young Rhee** Abstract The decision of nonconformity of the statute with the Constitution is a type of decision rendered by the Korean Constitutional Court, notwithstanding the silence of the Constitutional Court Act of Korea pertaining to such type of decision or the ground therefor. The Constitutional Court, by way of nonconformity decision, holds that the statutory provision at issue is not in conformity with the Constitution, without directly holding that the statutory provision is outright unconstitutional to become null and void upon issuance of the decision, out of deference to the lawmaking authority of National Assembly and, in certain situations, for the stability of law in its application. The holding of nonconformity decision of the Korean Constitutional Court varies in that the Constitutional Court either simply declares the nonconformity of the statutory provision with the Constitution, or renders the statutory provision at issue to be tentatively applicable through a designated date then lose effect, or yet stays the application of the statutory provision through a designated date with the possibility of its losing effect on a specific date should National Assembly fail to revise the statute by the time limit. The Korean Constitutional Court's nonconformity decision likewise urges National Assembly to revise the relevant statute in accordance with its holding and the stated grounds therefor often with designated time limit, shifting the burden to timely remove the declared unconstitutionality of the statute onto National Assembly. Whether and to which extent such recommendation or urging by the Constitutional Court to revise the statute binds National Assembly has yet to be determined and established, with such ensuing normative and institutional issues as the nonconformity decision's binding effect and retroactivity. A particularly complex challenge is observed in the case of National Assembly's failure to meet the designated time limit, although National Assembly has revised the relevant statutes in over 95% of such instances through the end of the session of the 20 National Assembly (2016-2020). The Korean Constitutional Court tends to render nonconformity decision primarily for the violation of constitutional principle of equality and for the failure to satisfy the individual * An earlier version of this article was presented at the 15th Asian Law Institute Conference in 2018. The research for this paper was sponsored by the Academic Research Fund of Seoul National University Law Research Institute funded by the Law Development Fund of Seoul National University, for the year 2020. ** Professor of Law, Seoul National University School of Law.