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The Principle of Non-Retroactivity and the Principle of the Protection of Trust
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불소급원칙과 신뢰보호원칙

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Type
Academic journal
Author
YI ZOON IL (고려대학교)
Journal
세계헌법학회 한국학회 세계헌법연구 세계헌법연구 제27권 제1호 KCI Accredited Journals
Published
2021.1
Pages
115 - 139 (25page)

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The Principle of Non-Retroactivity and the Principle of the Protection of Trust
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Abstract· Keywords

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In terms of the principle of the rule of law (Rechtsstaat), “legal stability”, the ideology (objective) that the law aims to be, is embodied in the principle of non-retroactivity and the principle of the protection of trust. If the purpose of guaranteeing the principle of non-retroactivity is understood as the protection of trust and legal stability, the principle of non-retroactivity is inevitably closely related to the principle of the protection of trust, regardless of whether it is a genuine retroactive law or a ungenuine retrospective law. The principle of the protection of trust, which protects the trust of members of the legal community, serves as the purpose of guaranteeing the principle of non-retroactivity or becomes a higher concept including the principle of non-retroactivity. Of course, it is also possible to confirm the difference between the principle of non-retroactivity and the principle of the protection of trust in that disadvantages (burdens/duties) that did not exist in the past are generally added in matters where the principle of non-retroactivity is a problem, whereas benefits (benefits/rights) that existed in the past are generally excluded in matters where the principle of the protection of trust is a problem. In the end, if there is no significant public interest for which a genuine retroactive legislation must be allowed exceptionally, or if there is no dangerous objective situation that could allow a genuine retroactive legislation to be exceptionally allowed, then it will go through a balancing of interests to determine whether or not to allow a genuine retroactive and result in the judgment that the retrospective legislation is ultimately not allowed. In the case of applying the principle of the protection of trust, as in the case of applying the principle of non-retroactivity, there is essentially a problem of balancing of interests.
#불소급원칙(소급입법금지원칙) #신뢰보호원칙 #법치주의(법치국가) #법적 안정성 #이익형량

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강태수 / 2018 / 헌법상 개별적 소급입법금지원칙의 예외에 관한 고찰 / 경희법학 53(3):3~42 dbpia 김승환 / 2007 / 독일과 한국의 헌법판례에 비추어 보는 법률불소급의 원칙 / 헌법학연구 13(3):305~339 dbpia 명재진 / 2003 / 신뢰보호와 헌법 / 연세법학연구 10(1):1~24 google schola 김해원 / 2017 / 기본권심사에서 법치국가원칙의 의미 / 헌법학연구 23(1):115~157 dbpia 이부하 / 2011 / 헌법상 소급효금지의 원칙과 예외 ― 독일 연방헌법재판소 판례를 분석하며 ― / 세계헌법연구 17(1):1~24 dbpia

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