Constitutional Court of Korea

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Coordinates: 37°34′41″N 126°59′05″E / 37.5780°N 126.9847°E / 37.5780; 126.9847

Constitutional Court of Korea
대한민국 헌법재판소
Emblem of the Constitutional Court of Korea.svg
Emblem of the Constitutional Court of Korea
Constitutional Court of Korea (2015).jpg
Constitutional Court of Korea
in Jongno, Seoul
Established1988; 34 years ago (1988)
LocationJongno, Seoul
Composition methodAppointed by President upon nomination of equal portions from National Assembly, Supreme Court Chief Justice and the President
Authorized byConstitution of South Korea Chapter Ⅵ
Judge term lengthSix years, renewable
(mandatory retirement at the age of 70)
Number of positions9 (by constitution)
Websiteccourt.go.kr
President
CurrentlyYoo Nam-seok
Since21 September 2018 (2018-09-21)
Constitutional Court of Korea
Logo of the Constitutional Court of Korea.svg
Logo of the Constitutional Court of Korea
Korean name
Hangul
Hanja
Revised RomanizationHeonbeop Jaepanso
McCune–ReischauerHŏnpŏp Chaep'anso

The Constitutional Court of Korea (Korean헌법재판소; Hanja憲法裁判所; RRHeonbeop Jaepanso) is highest constitutional court in judicial branch of South Korea, seated in Jongno, Seoul. Established under Chapter 6 of the Constitution of South Korea, the Court has ultimate jurisdiction over Judicial review on constitutionality of statute, review of all Impeachments, decision on Prohibition and Dissolution of political parties, competence dispute about demacation of power among central government agencies and local governments, and adjudication of constitutional complaint. It is composed of nine Justices, and one of them is President of the Constitutional Court of Korea. The Constitutional Court of Korea has equivalent status as one of two highest courts in South Korea. Another is Supreme Court of Korea.

The Court is seat for Permanent Secretariat of Research and Development in Association of Asian Constitutional Courts and Equivalent Institutions.

History[edit]

After liberation in 1945, the Republic of Korea (South Korea) tried over multiple times to establish independent and active constitutional court to exercise power of judicial review, as Austria and Germany. These tries include Constitutional Committee (Korean: 헌법위원회) of the 1st (1948), 2nd (1952) Constitution and the Constitutional Court (Korean: 헌법재판소) of the 4th (1960), 5th (1960) Constitution. Much of these tries have been compromised by authoritarian governments. For example, the Committee made only six decisions during operation, and the Court was never formed due to coup d'état of Park Chung-hee in year 1961.[1]

Coup d'état of Park Chung-hee dismantled Constitutional Court of the Second Republic of Korea

Later, president Park Chung-hee who became authoritarian dictator by military coup d'état in 1961, made 6th (1962) and 7th (1969) Constitution which repealed the Constitutional Court and gave power of judicial review to Supreme Court. Yet when the Supreme Court once tried to confront president Park by exercising judicial review in 1971, by nullifying National Compensation Law (Korean: 국가배상법, or translated as State Tort Claims Act) which restricted state's liability for compensating injured soldiers while serving the country, president Park repulsed by crackdown. At that time, it was conventionally natural to reappoint Supreme Court Justices who finished their first term as Justice, yet the President Park refused to reappoint all of Supreme Court Justices who participated in majority opinion of case which nullified the Law as judicial review in 1971. This unbloody repression successfully bent vehemence of the Supreme Court. South Korea's 8th (1972) Constitution made by the President Park, which is called as Yushin Constitution, empowered Constitutional Committee with judicial power, requiring request from ordinary court as preliminary condition. However, ordinary courts under control of the Supreme Court never made request to the Committee, as the Supreme Court worried about another disgraceful crackdown. This paralyzed status of Constitutional Committee by reluctant Supreme Court continued until South Korea got democratized.[2]

After long dark age of constitutionalism, democratization of South Korea in 1988 finally enabled foundation of contemporary 'Constitutional Court of Korea' with power of judicial review under 9th amendment of Constitution, which is current Constitution of South Korea. This historical background makes the Court as embodiment of the new democratic constitutional order of South Korea.[3] Following such will of South Korean people, the Constitutional Court has made significant landmark decisions in contemporary history of South Korea. Renowned latest decisions of the Court includes decriminalization of abortion and impeachment of Park Geun-hye.[4]

Status[edit]

Current judicial system of South Korea, especially on status of the Constitutional Court of Korea, is under influence of Austrian judicial system.[5] As Austria has three equivalent highest courts by jurisdiction defined in different chapters of the Austrian constitution,[6] the Constitution of South Korea[7] has defined two highest courts in different chapter; Coventional judiciary composed of ordinary courts and the Supreme Court of Korea as top of its hierarchy is defined in article 101(2) under Chapter 5 named 'Court' (Korean: 법원), while the Constitutional Court of Korea as only and the highest constitutional court is defined in article 111(1) under Chapter 6 named 'Constitutional Court' (Korean: 헌법재판소).

It is noteworthy that drafters of the Constitution tried to emphasize that the Constitutional Court is not belong to hierarchy of ordinary courts under the Supreme Court. It led the drafters to use the term '(Korean: 재판소)' to describe concept of 'court' in Constitutional Court, while the concept of 'court' in ordinary courts are phrased as term '(Korean: 법원)'. This equivalent status of the Constitutional Court and the Supreme Court is practically guaranteed by statute, as article 15 of the Constitutional Court Act states President and the associate Justices of the Constitutional Court should be treated as same as Chief Justice and the associate Justices of the Supreme Court.[8]

Composition[edit]

Justices[edit]

Article 111(2) to 111(3) of the Constitution stipulates appointment procedure and size of the Constitutional Court. The Court is composed of nine Constitutional Court Justices (Korean: 헌법재판소 재판관) and all of them is formally appointed by the President of South Korea. However, appointment on three of nine Justices should follow nomination from the National Assembly, and other three of nine Justices should also follow nomination from the Supreme Court Chief Justice. Thus, the President of South Korea can only make own decision on appointing three of nine Justices. This appointment structure reflects civil law tradition regarding ordinary courts as heart of conventional judiciary, since the President of South Korea represents executive branch, and the National Assembly represents legislative branch, while the Supreme Court Chief Justice represents judicial branch of the South Korean government. However, it is clear that both the Supreme Court and the Constitutional Court generally regards the power of the Constitutional Court as essentially an kind of judicial power.[9] To be appointed as Constitutional Court Justice, one should be at least 40 years old, qualified as attorney at law and should also have more than 15 years of career in legal pratice or academia, by article 5(1) of the Act.

While exact internal procedure for nomination of Constitutional Court Justices is not stipulated by statutes, nomination of three Justices from the National Assembly is usually determined by political negotiation between ruling party and the first opposition party. When the size of second opposition party is not big enough to formally participate in appointment process, the ruling party nominates one, and the first opposition party nominates other one. The left one is common share between two parties, decided by negotiation or election when the negotiation fails. For example, former Justice Kang Il-won was nominated by the National Assembly according to negotiation between ruling Saenuri Party and the first opposition Democratic United Party in year 2012. Otherwise, when the second opposition party is big enough, it participates in appointment process and nominates left one portion. Current Justice Lee Young-jin is example of Justice nominated from the National Assembly by second opposition Bareunmirae Party in year 2018.

It is noteworthy that though article 6(2) of the Constitutional Court Act states there should be 'confirmation hearings of the National Assembly' (Korean: 국회 인사청문회) for appointment of all Constitutional Court Justices before appointment or nomination. However, though it is translated in English as 'confirmation hearings', Korean: 인사청문회 of the National Assembly is interpreted as not an binding procedure when the Constitution never requires confirmation or consent of the National Assembly.[10] Thus, whether the National Assembly agrees or not with direct appointment of three Justices from the President of South Korea and nomination of three Justices from Supreme Court Chief Justice, does not and cannot invalidate appointment.

Council of Constitutional Court Justices[edit]

The 'Council of Constitutional Court Justices' (Korean: 재판관회의) is established according to article 16(1) of the Constitutional Court Act. It is composed of all nine Justices (including the President of the Constitutional Court as permanent presiding Chair), and can make decision by simple majority among quorum of two-thirds of all Supreme Court Justices, according to article 16(2) and (3) of the Act. Main role of the Council is supervisionary functions for the President of the Court's power of court administration, such as appointment of Secretary General, Vice Secretary General, Rapporteur Judges and other high-ranking officers over Grade Ⅲ. Other issues requiring supervisionary functions of the Council includes making interior procedural rules and planning on fiscal issues.

President of the Constitutional Court[edit]

Article 111(4) empowers the President of South Korea to appoint the President of the Constitutional Court of Korea among nine Constitutional Court Justices, with consent the National Assembly. By article 12(3) of the Constitutional Court Act, President of the Court represents the Court and supervises court administration. Also by article 16(1), the President of the Court is chair of the Council of Constitutional Court Justices. Finally, by article 22 of the Constitutional Court Act, the President of the Court always becomes presiding member of the Full bench (Korean: 전원재판부) composed of all nine Constitutional Court Justices.

Tenure[edit]

Article 112(1) of the Constitution and article 7 of the Constitutional Court Act provides the term of associate Justice as renewable six-year up to mandatory retirement age of 70. However, there's only two Justices who attempted to renew their term by reappointment,[11] because renewing attempt can harm judicial independence of the Constitutional Court. During the term, according to article 112(1) and 112(2) of the Constitution, Justices shall not be expelled from office unless by impeachment or a sentence of imprisonment, and they shall not join any political party, nor shall participate in political activities to protect political neutrality of the Court.

One of sophisticated issue on the Court's tenure system is term length of the President of the Court, since the Constitution and the Act never states about exact term of the President. Shortly, the President of the Court who was newly appointed simultaneously as both Justice and the President can have full six-year term as one of the Justice, while the President of the Court who was appointed during term as Justice can only serve as the President during remaining term as Justice. For more information, see President of the Constitutional Court of Korea.

Current justices[edit]

Name Born Appointed by Recommended by Education First day / Length of service
Yoo Nam-seok (President) May 1, 1957 (age 65) in Mokpo Moon Jae-in (Directly) Seoul National University November 11, 2017 / 4 years, 6 months
Lee Seon-ae January 3, 1967 (age 55) in Seoul Hwang Kyo-ahn Chief Justice (Yang Sung-tae) Seoul National University March 29, 2017 / 5 years, 1 month
Lee Suk-tae April 17, 1953 (age 69) in Seoul Moon Jae-in Chief Justice (Kim Myeong-soo) Seoul National University September 21, 2018 / 3 years, 7 months
Lee Eunae May 21, 1966 (age 55) in Gwangju Moon Jae-in Chief Justice (Kim Myeong-soo) Seoul National University September 21, 2018 / 3 years, 7 months
Lee Jongseok February 21, 1961 (age 61) in Chilgok Moon Jae-in National Assembly (Liberty Korea) Seoul National University October 18, 2018 / 3 years, 7 months
Lee Youngjin July 25, 1961 / (age 60) in Hongseong Moon Jae-in National Assembly (Bareunmirae) Sungkyunkwan University October 18, 2018 / 3 years, 7 months
Kim Kiyoung April 9, 1968 (age 54) in Hongseong Moon Jae-in National Assembly (Democratic) Seoul National University October 18, 2018 / 3 years, 7 months
Moon Hyungbae February 11, 1966 (age 56) in Hadong Moon Jae-in (Directly) Seoul National University April 19, 2019 / 3 years, 1 month
Lee Mison January 18, 1970 (age 52) in Hwacheon Moon Jae-in (Directly) Pusan National University April 19, 2019 / 3 years, 1 month

Organization[edit]

Rapporteur Judges[edit]

Rapporteur Judges (Korean: 헌법연구관, formerly known as 'Constitutional Research Officers') are officials supporting nine Justices in the Court. They exercise investigation and research for review and adjudication of cases, to prepare memoranda and draft decisions, which makes them as kind of judicial assistant (such as Conseillers référendaires[12] in French Cour de cassation or Gerichtsschreiber[13] in Swiss Bundesgericht usually working for 5 to 10 years or more until retirement, but not as law clerks in United States Supreme Court working for 1 to 2 years as intern[14]).

Rapporteur Judges are appointed by President of the Court with consent of Council of Justices, under article 16(4) and 19(3) of the Act, and serve for renewable ten-year terms, which is same tenure system as lower ordinary court Judges (Korean: 판사) in South Korea. It is noticeable that Rapporteur Judges serve longer than Justices in Constitutional Court, and paid as same as lower ordinary court Judges, since these professional assistants are designed to ensure continuity of constitutional adjudication in South Korea. Some of Rapporteur Judges position is filled with lower ordinary court Judges or Prosecutors seconded from outside of the Constitutional Court for 1 to 2 years, to enhance diversity and insight of the Court according to article 19(9) of the Act. Other than Rapporteur Judges, there are 'Constitutional Researchers' (Korean: 헌법연구원) and 'Academic Advisors' (Korean: 헌법연구위원) at the Court, working for 2 to 5 years to assist research on academic issues mainly on comparative law related to the Court's on-going cases by article 19-3 of the Act.

Department of Court Administration[edit]

The Court's administrative affairs are managed autonomously inside the Court, by apparatus called 'Department of Court Administration' (DCA, Korean: 헌법재판소사무처). The Department is led by the 'Secretary General' (Korean: 사무처장), currently Park Jong Mun, under direction of the President of the Court, provided with consent of 'Council of Justices' (Korean: 재판관회의) in some of important issues under article 16 and 17 of the Constitutional Court Act. The Secretary General is treated as same level as other Ministers at State Council in executive branch of South Korean government, by article 18(1) of the Act. The Deputy Secretary General (Korean: 사무차장) is appointed usually from the senior Rapporteur Judges and treated as same level as other Vice-Ministers. The Department implements decisions of the Council of Constitutional Court Justices and operates various issues of court administration, including fiscal and human resource issues or other information technology services of the Court. It has also professional team for supporting international relations of the Court, including Venice commission and Association of Asian Constitutional Courts and Equivalent Institutions.

Constitutional Research Institute[edit]

Constitutional Research Institute (Korean: 헌법재판연구원) is the Constitutional Court's own institute established by article 19-4 of the Constitutional Court Act in year 2011, for research on fundamental academic issues concerning comparative law and original legal theories for South Korean Constitution. It also has function for training newly appointed officials of the Court and educating public on constitution. Professors at the Institute are recruited mainly from PhD degree holders educated from foreign countries, and their research and education programs are supervised by senior Rapporteur Judges as manager seconded from the Court. The Institute is currently located in Gangnam, Seoul.[15]

Building[edit]

Side view of the Constitutional Court of Korea building

Current buildings of the Constitutional Court of Korea, seated in Jae-dong, Jongno-gu of Seoul near Anguk station of Seoul Subway Line 3, is divided into Courthouse and the Annex. The five-story main building for Courthouse is designed in neo-classical style to incorporate Korean tradition with new technology. It was awarded 1st place of 2nd Korean Architecture Award in October 1993, the year it was completed.[16] Right pillar of the main gate is engraved as Korean: 헌법재판소 meaning the Constitutional Court itself, while the left pillar gate is engraved as Korean: 헌법재판소사무처 meaning the Department of Court Administration. It includes the courtroom, office and deliberation chamber for Justices, office for Rapporteur Judges, Academic Advisors and Constitutional Researchers, and one of working space for Department of Court Administration. The Annex building, built in April 2020 as three-story building tried to enhance communication with public and barrier-free accessibility. It includes law library, permanent exhibition hall for visitors and another working space for the Department.[17] The Court usually holds open hearing session or session for verdict in 2nd and last thursday of a month, and visitors with ID cards or passports may attend the session. However, unaccompanied tour on building is restricted for security of the Court.[18]

Procedure[edit]

As South Korea has predominant civil law tradition, major sequence of review procedure in the Constitutional Court of Korea stipulated in Chapter 3 of Constitutional Court Act is structured into two phases. First phase is investigating preliminary conditions on admissibility of case, not on merits. For example, if the plaintiff (who made request for adjudication) lapsed deadline for request, the case is formally decided as 'Dismissed' (Korean: 각하) no matter how much the plaintiff's request is right or not. This phase is named as 'Prior review' (Korean: 사전심사) under article 72 of the Act. Second phase is reviewing and deliberating merits of case. This phase is mainly fulfilled without oral hearing, yet the Court may hold oral hearing session if necessary, according to article 30 of the Act. If a case had passed prior review phase yet could not prove merits, the cas is formally decided as 'Rejected' (Korean: 기각). Otherwise, it is decided as 'Upheld' yet the specific form of upheld decision varies with each of jurisdiction, especially in judicial review of statutes.

First phase, the 'Prior review' is delivered by three different Panel (Korean: 지정재판부) of the Court, and each of the Panel is composed of three Justices. At this phase, the Court takes inquisitorial system to investigate every possible omit of preliminary conditions. If the Panel decides unanimously that the case lacks any of preliminary conditions, the case is dismissed. Otherwise, the case goes to second phase, where the Full bench (Korean: 전원재판부) composed of all possible Justices with the President of the Court as presiding member, reviews the case by article 22 of the Act. Though the case may already passed Prior review, still it can be dismissed since other Justices who did not participated in Prior review of such case can have different opinion.

Votes and Quorum of Full Bench[edit]

According to 113(1) of the Constitution and article 23(2) of the Act, to make decision upholding requests for the Adjudication, or to change precedent, the Court needs votes from at least six Justices among quorum of at least seven Justices. The only exception is making uphold decision in Adjudication on competence dispute. It only requires simple majority to make uphold decision. Otherwise, for example, to dismiss or to reject case, only simple majority with quorum of at least seven Justices is need to make decision. If there's no simple majority opinion, the opinion of the Court is decided by counting votes from the most favorable opinion for the plaintiff to the most unfavorable opinion for the plaintiff, until the number of votes gets over six. When the counted votes are over six, the most unfavorable opinion inside the votes over six are regarded as opinion of the Court.

Presiding Justice and Justice in charge[edit]

In South Korea, among panel of Judges or Justices, there should be 'presiding member (Korean: 재판장)' and 'member in charge (Korean: 주심)'. The presiding member is official representative of the panel. The member in charge is who oversees hearing and trial and writes draft judgment for each specific case. This role of 'member in charge' is mostly similar to Judge-Rapporteur in European Court of Justice. Usually the member in charge is automatically (or randomly) selected by computer to negate suspicion of partiality. However, the presiding member is bureaucratically selected by seniority. Due to this virtual difference in role, 'presiding Judge' in South Korean courts usually refer toKorean: 부장판사 which means such Judge is bureaucratically regarded as 'head of the panel', not who really takes role of presiding member in each of specific cases. For example, former Justice Kang Il-won was 'Justice in charge' (Korean: 주심재판관) in Impeachment of Park Geun-hye case, so he presided much of hearings, though official presiding member of the Full bench at that time was former Justice Lee Jung-mi as acting President of the Court.[19]

Case naming[edit]

Cases in the Constitutional Court are named as following rule. First two or four digit Arabic numbers indicate the year when the case is filed. And the following case code composed of Alphabets are categorized into eight; Hun-Ka, Na, Da, Ra, Ma, Ba, Sa and A. Each of the code matches with specific jurisdiction of the Court. The last serial number is given in the order of case filing of each year.[20]

Jurisdiction[edit]

Constitutional litigation structure of South Korea

Scope of jurisdiction of the Constitutional Court is defined in article 111(1) of the Constitution of South Korea, as following five categories; Adjudication on (1) constitutionality of statutes, (2) impeachment, (3) dissolution of a political party, (4) competence dispute and (5) constitutional complaint.[21] While organizational status of South Korean Consitutional Court is mostly influenced from Austria, scope of jurisdiction is mostly influenced from Germany.

on Constitutionality of statutes[edit]

According to article 111(1), 1. of the Constitution, the Constitutional Court may review constitutionality of law upon request of the courts. This is power of judicial review (Korean: 사법심사) is officially named as Adjudication on the constitutionality of statutes (Korean: 위헌법률심판) in Chapter 4, Section 1 of the Constitutional Court Act, most prominent power of the Court. Since the power requires request from ordinary courts as preliminary condition for adjudication, and the ordinary courts of South Korea follows adversarial system as Nemo iudex sine actore, this power of Adjudication on the constitutionality of statutes is interpreted as power of 'concrete review of statutes' (Korean: 구체적 규범통제, German: Konkrete Normenkontrolle), rather than 'abstract review of statutes' (Korean: 추상적 규범통제, German: Abstrakte Normenkontrolle). It means judicial review on statute under article 111(1) 1. of the South Korean Constitution strictly requires specific case on-going in ordinary court as preliminary condition, and that case should cover issue on applying such statute. Any interested parties can claim to ordinary court to make request of judicial review to the Constitutional Court. When the court accept claim and makes request, on-going case in ordinary court is suspended by article 42(1) of the Act, until the Constitutional Court makes decision.

Decriminalising abortion in South Korea (2017Hun-Ba127) in 2019 is one of landmark decision on constitutional complaint under 68(2) of the Act

It is notable that according to article 41(1) of the Act, the request for the judicial review as Adjudication on the constitutionality of statutes is made by each of ordinary court, and any hierarchically superior court including the Supreme Court cannot intervene in whether such request is necessary or not by article 41(5) of the Act. This regulation was adopted to facilitate judicial review in South Korea, since the Supreme Court had history of passiveness in confronting other branches of government during age of authoritarian governments. Yet legislature of South Korea after democratization was a lot more concerned about whether the lower ordinary courts will really try to make such request, because much of the Judges in lower ordinary courts were tied to bureaucratic promotion system by the Supreme Court. This worry led legislature to build another detour to facilitate judicial review. The detour is embodied in as 'Constitutional complaint' (Korean: 헌법소원심판) by article 68(2) of the Act. By this article 68(2), when the ordinary court refuses to make request of judicial review to the Constitutional Court, any interested parties in on-going case in such ordinary court who were refused by that court to make request of judicial review, can directly make constitutional complaint to the Constitutional Court whether their basic rights are infringed by unconstitutional statute applied in on-going case at ordinary court.[22] Thus, in summary, judicial review of statutes are carried out as two subtly different procedure of 'Adjudication on the constitutionality of statutes' and 'Adjudication on constitutional complaint under 68(2) of the Act'.

  • Type of Upheld Decisions in both 'Adjudication on the constitutionality of statutes' and 'Adjudication on constitutional complaint under 68(2) of the Act'
    • Unconstitutional (Korean: 위헌) : Decision upholding request. It nullifies adjudicated statute by 47(2) of the Act from the day of decision. Yet when the statute decided as unconstitutional is about criminal punishment, it is retroactively nullified, unless there is any precedent of the Court deciding such statute as constitutional. If there's such precedent, the statute is retroactively nullified from the following day of the day when latest precedent is made.
    • Constitutional (Korean: 합헌) : Decision dismissing request.
    • Nonconformity (Korean: 헌법불합치) : Temporally constitutional until certain period of time set by the Court. This type of decision is derived type of 'Unconstitutional' to give the National Assembly (which is legislature) enough time to amend law. After the time set by the Court, the adjudicated statute is automatically nullified.
    • Conditionally Unconstitutional (Korean: 한정위헌), Conditionally Constitutional (Korean: 한정합헌) : A declaration that the adjudicated statute is currently constitutional, yet the statute must be interpreted in specific way which is aligned to constitutional order interpreted by the Constitutional Court. Thus, it is not an kind of upholding request from ordinary court. Rather, both 'Conditionally Unconstitutional' and 'Conditionally Constitutional' decision is derived type of 'Constitutional' decision with opinion of the Court suggesting certain way of interpreting the adjudicated statute. This kind of derivative decision (Korean: 변형결정) is core issue of power struggle between the Constitutional Court and the Supreme Court.

on Impeachment[edit]

Impeachment of Park Geun-hye (2016Hun-na1) in 2017 is one of landmark decision on impeachment

Impeachment adjudication (Korean: 탄핵심판) is another prominent power of the Constitutional Court. According to article 65(1) of the Constitution, impeachment of officials in every branch of government with serious violation of constitution or statute is initiated by motion made in the National Assembly of South Korea, and adjudicated in Constitutional Court of Korea by article 111(1), 2. of the Constitution. The rejected impeachment of Roh Moo-hyun in year 2004 and upheld impeachment of Park Geun-hye in year 2017 are not only landmark decisions in record of the Court, but also in history of the Republic of Korea. However, the Constitution and the Constitutional Court Act never states about concrete standards about when to reject impeachment or not. Thus, these two different impeachment cases are materialized standards for decision on impeachment themselves as virtual case laws as precedents. For example, though the Constitution and the Act never requires how much the violation on the Constitution or statute should be serious to uphold impeachment, the first case law of Roh Moo-hyun impeachment requires 'grave (Korean: 중대한)' violation on statute as condition enough to justify removal of a public official from office. This 'grave violation' standard is not applied when impeached is troubled over violation on the Constitution.[23]

on Dissolution of political party[edit]

Article 8(4) of the Constitution is institution for defensive democracy. When purposes or activities of a political party are contrary to the 'fundamental democratic order (Korean: 민주적 기본질서)', the Government may file a request to the Constitutional Court to adjudicate whether the party should be dissolved and prohibited, which is power granted to the Constitutional Court by article 111(1), 3. of the Constitution. This adjudication system, formally known as Adjudication on dissolution of a political party (Korean: 정당해산심판) is an institution directly influenced by German institution called 'Party Ban' (German: Parteiverbot),[24] where ban on political party is adjudicated by the German Constitutional Court. While Germans used this institution to defense German democracy mainly from Neo-Nazism in 1950s, South Koreans worried North Korea may plot soft regime change inside South Korean democracy. This national worry got finally brought out as South Korean government requesting dissolution of the 'Unified Progressive Party (UPP, Korean: 통합진보당)' in November 2013, based on claims that the purposes and activities of UPP are based on North Korean Socialism, which is contrary to fundamental democratic order.[25] The Constitutional Court upheld government request in December 2014 with 8-to-1 ruling, as Lee Seok-ki and other leading members of UPP were turned out to be having secret plots to overthrow South Korean government.[26] After decision, whether not only punishing Lee Seok-ki and its gang by criminal liability, yet dissolving and prohibiting whole UPP was necessary or not was contentious issue inside South Korean jurists.[27]

on Competence dispute[edit]

The Adjudication on competence dispute (Korean: 권한쟁의심판) under article 111(1), 4. of the Constitution is another institution directly influenced by German institution called 'Organs Dispute' (German: Organstreit).[28] In this procedure, organs specified in the Constitution can participate in adjudication under adversarial system, to determine exact demarcation of each organ's constitutional and statutory power. South Korean constitution defines organs available to participate in competence dispute as 'State agencies' (Korean: 국가기관) and 'Local governments' (Korean: 지방자치단체) which have legal ground on level of Constitution, thus organs established by legislature cannot participate in competence dispute.

on Constitutional complaint[edit]

According to article 111(1), 5. of the Constitution and article 68(1) of Constitutional Court Act, the Court may review whether basic right of the plaintiff is infringed by any public authorities. Influenced by German institution called Verfassungsbeschwerde, this Adjudication on Constitutional complaint (Korean: 헌법소원심판) system is designed as last resort for defending basic rights under the Constitution. Thus basically, the Court can adjudicate the complaint only if when other possible remedies are exhausted. Yet the Adjudication on Constitutional complaint is not accompanied with lawsuits on civil liability, since judgment on civil liability is role of ordinary courts. The Court only reviews whether the basic right of the plaintiff is infringed or not in this adjudication process. Detailed issues on calculation of damage and compensation is out of the Court's jurisdiction. This type of adjudications are usually dismissed in Prior review due to lack of preliminary conditions.

In addition, there's another unique type of constitutional complaint under article 68(2) of the Act, as discussed above in paragraph of 'on Constitutionality of statutes'. This constitutional complaint by article 68(2) of the Act is detour for Adjudication on the constitutionality of statutes (or judicial review) denied by ordinary courts. It is usually called as 'Korean: 법령소원심판' in Korean, which means constitutional complaint especially on statutes. As this type of constitutional complaint is designed as detour for judicial review, the preliminary conditions required in Prior review for constitutional complaint under article 68(2) is different from the complaints under article 68(1) of the Act. It does not require any possible remedies to be exhausted already, but requires the plaintiff was dismissed of claim for judicial review from the ordinary court about on-going case of the plaintiff. It is notifiable that on-going case is not automatically sustained during Adjudication on Constitutional complaint by article 68(2) of the Act.

Statistics[edit]

Below is aggregated statistic from foundation of the Court until 09 Feb 2021.[29]

Type Total Constitutionality of
statutes
Impeachment Dissolution of
a political party
Competence
dispute
Constitutional complaint
Sub total §68 I §68 II
Filed 41,615 1,008 2 2 115 40,488 32,074 8,414
Settled 40,303 957 2 2 110 39,232 31,264 7,968
Dismissed by panel 24,476 24,476 19,915 4,561
Decided by
full bench
Unconstitutional 655 294 361 113 248
Nonconformity 262 82 180 75 105
Conditionally
unconstitutional
70 18 52 20 32
Conditionally
constitutional
28 7 21 21
Constitutional 2,843 359 2,484 4 2,480
Upholding 794 1 1 19 773 773
Rejected 7,998 1 27 7,970 7,970
Dismissed 2,115 73 1 45 1,996 1,611 385
Other 10 10 8 2
Withdrawn 1,052 124 19 909 775 134
Pending 1,312 51 5 1,256 810 446

International relations[edit]

  • Venice Commission : As the Republic of Korea is a member state of the Venice Commission, one of associate Justices in Constitutional Court of Korea becomes member for the Commission. Substitute members are conventionally designated in following two positions; Deputy Secretary General at the Court's Department of Court Administration, and Deputy Minister of Ministry of Justice. Current member is Justice Lee Suk-Tae.[30]

Criticism and Issues[edit]

It is noteworthy that according to the article 113(1) of South Korean Constitution, the Constitutional Court cannot make upholding decision when there's not enough number of Justices appointed to meet quorum, yet there is no contingency plan for massive vacancy of Justices.[31] While there is no contingency plan in the Constitution, even article 6(4) and (5) of Constitutional Court Act only requires vacancy should be filled in 30 days, without any meaningful contingency plan when such 30 days passes. This situation makes the Constitutional Court of Korea vulnerable to be paralyzed by politics between the President of South Korea and the legislature.[32] While this problem is also happening in the Supreme Court of South Korea, the problem of the Constitutional Court is much worse as the article 113(1) strictly requires there should be at least six Constitutional Court Justices to make upholding decision. The Supreme Court only requires simple majority for any decision.

See also[edit]

References[edit]

  1. ^ "History of Constitutional Adjudication". Constitutional Court of Korea. Retrieved 2022-04-05.
  2. ^ "KIM, MARIE SEONG-HAK. "Travails of Judges: Courts and Constitutional Authoritarianism in South Korea." The American Journal of Comparative Law, vol. 63, no. 3, 2015, pp. 612-614, 641". Retrieved 2022-04-05.
  3. ^ "Garoupa, Nuno, and Tom Ginsburg. "Building Reputation in Constitutional Courts: Political and Judicial Audiences." Arizona Journal of International and Comparative Law, vol. 28, no. 3, Fall 2011, p. 563". Retrieved 2022-04-05.
  4. ^ For major decisions of the Constitutional Court of Korea, see "Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  5. ^ "West, James M., and Dae-Kyu Yoon. "The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex?" The American Journal of Comparative Law, vol. 40, no. 1, 1992, pp. 76-77". Retrieved 2022-04-05.
  6. ^ "The Supreme Court of Justice". Oberster Gerichtshof English Website. Retrieved 2022-04-05.
  7. ^ "Constitution of the Republic of Korea". Korea Legislation Research Institute. Retrieved 2022-04-05.
  8. ^ "Constitutional Court Act". Korea Legislation Research Institute. Retrieved 2022-04-05.
  9. ^ For example, see "Page 127 of 16-2(B) KCCR 1, 2004Hun-Ma554, 566(consolidated), October 21, 2004". Constitutional Court of Korea. Retrieved 2022-04-05. for the Constitutional Court and "Supreme Court Decision 2020Do12017 Decided August 26, 2021" (in Korean). Supreme Court of Korea. Retrieved 2022-04-05. for the Supreme Court
  10. ^ "Moon likely to ask for confirmation hearing report on embattled justice minister nominee". Yonhap News Agency. 2019-09-01. Retrieved 2022-04-05.
  11. ^ The two Constitutional Court Justices who renewed their term is Justice Kim Chin-woo and Kim Moon-hee, both affected by President Kim Young-sam "Former Justices". Constitutional Court of Korea. Retrieved 2022-04-05.
  12. ^ "les magistrats du siege" (in French). Cour de Cassation. Retrieved 2022-04-10.
  13. ^ "Gerichtsschreiber und Gerichtsschreiberinnen" (in German). Bundesgericht. Retrieved 2022-04-10.
  14. ^ "Sanders, A. (2020). Judicial Assistants in Europe – A Comparative Analysis. International Journal for Court Administration, 11(3), 2". Retrieved 2022-04-10.
  15. ^ "Constitutional Research Institute, Official Website". Retrieved 2022-04-05.
  16. ^ "1993, 한국건축문화대상" (in Korean). Architecture & Urban Research Institute. Retrieved 2022-04-05.
  17. ^ "Building". Constitutional Court of Korea. Retrieved 2022-04-05.
  18. ^ "Open Hearings". Constitutional Court of Korea. Retrieved 2022-04-05.
  19. ^ "Impeachment deliberation kicks off". Yonhap News Agency. 2017-03-01. Retrieved 2022-04-05.
  20. ^ "Case number, Search Guide for Decisions". Constitutional Court of Korea. Retrieved 2022-04-05.
  21. ^ For more detailed introduction of the jurisdiction, see "Types of Jurisdiction". Constitutional Court of Korea. Retrieved 2022-04-05.
  22. ^ In fact, small but significant number of judicial reviews which ordinary courts refused to make request upon, are turn out to be unconstitutional when adjudicated by article 68(2) of the Act. This strongly suggests ordinary courts in South Korea is still passive on facilitating judicial review even after democratization. See "Yoon, Dae-Kyu. "The Constitutional Court System of Korea: The New Road for Constitutional Adjudication" Journal of Korean Law, vol. 1, no. 2, 2011, pp. 10-11". Retrieved 2022-04-05.
  23. ^ "2004Hun-Na1, Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  24. ^ "Proceedings for the prohibition of political parties". Federal Constitutional Court. Retrieved 2022-04-05.
  25. ^ "South Korea: Unprecedented Claim Filed with Constitutional Court to Dissolve a Political Party". Library of Congress, United States. Retrieved 2022-04-05.
  26. ^ "2013Hun-Da1, Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  27. ^ "South Korea's Political Divisions on Display With Lee Seok-ki Case". The Diplomat. Retrieved 2022-04-05.
  28. ^ "Organstreit proceedings". Federal Constitutional Court. Retrieved 2022-04-05.
  29. ^ "Constitutional Court Korea > > Jurisdiction > Statistics". Constitutional Court of Korea. Retrieved 2021-02-09.
  30. ^ "Korea, Republic, Member states". Venice Commission. Retrieved 2022-04-05.
  31. ^ There are variety of contingency system to prevent paralyzed highest court around the world. For instance, Austrian constitutional court prepares 'substitute member' in advance to fill abruptly occurred vacancy. Also, Germany constitutional court sustains current member's term until the successor is appointed by Section 3, Clause 4 of Act on the German Federal Constitutional Court (German: Bundesverfassungsgerichtsgesetz). See "Act on the Federal Constitutional Court". Gesetze-im-Internet. Retrieved 2022-04-05.
  32. ^ "Constitutional Court shuts doors". Korea JoongAng Daily. 2018-09-19. Retrieved 2022-04-05.

External links[edit]