A Study on the Legislative-Formative Effect of Decisions of Constitutional Nonconformity : Focusing on the Constitutional Court Decision 2017Hun-Ba127 Decided on April 11, 2019

In 2019, the Korean Constitutional Court rendered a decision of constitutional nonconformity regarding the abortion provisions in the Criminal Act, setting a legislative amendment deadline of December 31, 2020. However, the National Assembly failed to implement the amending legislation even after the deadline had passed. As a result, a legal vacuum with no regulations on abortion has persisted until March 2026.

Consequently, the protection of the fetus's right to life has been virtually rendered powerless, and the woman's right to self-determination has also failed to be protected actively or legally. Focusing on this ruling, this study examines the significance and limitations of the ‘legislative-formative effect’ of constitutional nonconformity decisions. To devise constitutional control measures for the Constitutional Court, the study conducts a comparative legal review of abortion-related rulings in Germany and the United States, where discussions on abortion and the effect of constitutional nonconformity decisions have long been active.

First, while the U.S. Supreme Court substituted legislative functions by creating specific regulations (the trimester system) through the Roe v. Wade decision, it recently returned legislative authority to the states through the Dobbs decision, sparking constitutional controversy; this study briefly explains these developments and derives implications.

In contrast, the German Federal Constitutional Court anticipates the possibility of the legislature’s failure to fulfill its duty and minimizes gaps in the constitutional order by issuing specific provisional application orders or functioning as an “emergency legislator (Notgesetzgeber)” based on Article 35 of the Federal Constitutional Court Act (BVerfGG). By comparing and analyzing the abortion rulings of both countries, this study points out the passive stance of the Korean Constitutional Court’s abortion decision based on those standards. It confirms that when the legislature neglects its constitutional duty to amend laws and it is evident that citizens' fundamental rights are being infringed, the Constitutional Court has a constitutional mandate to form minimal regulations through specific transitional measures or supplementary orders.

This should be understood not as an infringement on legislative power, but as a supplementary and temporary function of the judiciary to uphold the supremacy of the Constitution and sustain constitutional dialogue. In conclusion, to prevent similar legislative vacuums in the future, this study suggests that the Constitutional Court should exercise more active legislative-formative power, referring to the German model.