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Constitutional Court of Korea

April 06, 2023

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

The Constitutional Court of Korea (Korean: 헌법재판소; Hanja: 憲法裁判所; RR: Heonbeop Jaepanso) is one of the highest courts—along with the Supreme Court—in South Korea's judiciary that exercises constitutional review, seated in Jongno, Seoul. The South Korean Constitution vests judicial power in courts composed of judges, which establishes the ordinary-court system, but also separates an independent constitutional court and grants it exclusive jurisdiction over matters of constitutionality. Specifically, Chapter VI Article 111(1) of the South Korean Constitution specifies the following cases to be exclusively reviewed by the Constitutional Court:[1]

  1. The constitutionality of a law upon the request of the courts;
  2. Impeachment;
  3. Dissolution of a political party;
  4. Competence disputes between State agencies, between State agencies and local governments, and between local governments; and
  5. Constitutional complaints as prescribed by [the Constitutional Court] Act.
Constitutional Court of Korea
대한민국 헌법재판소
Emblem of the Constitutional Court of Korea
Constitutional Court of Korea
in Jongno, Seoul
Established1988; 35 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
Korean name
Hangul
헌법재판소
Hanja
憲法裁判所
Revised RomanizationHeonbeop Jaepanso
McCune–ReischauerHŏnpŏp Chaep'anso

Article 111(2) states that the Constitutional Court shall consist of nine justices qualified to be court judges, all of whom shall be appointed by the president of South Korea. Even though all nine justices must be appointed by the president, Article 111(3) states that the National Assembly and the Chief Justice shall nominate three justices each, which implies the remaining three are nominated by the president of South Korea. Article 111(4) states that the candidate for the president of the Constitutional Court must obtain the approval of the National Assembly before the President appoints them.

The South Korean Constitution broadly delineates the roles of courts, both ordinary courts and the Constitutional Court, and entrusts the National Assembly to legislate the specifics of their functions. The National Assembly, soon after the ninth constitutional amendment that ended decades of dictatorship in South Korea, passed the Constitutional Court Act (Korean: 헌법재판소법), which spells out a detailed organizational structure of the Court, establishes the hierarchy of judicial officers and their roles within the Court, and most importantly, provides ways in which people of Korea can appeal to the Court. Unlike other constitutional courts (most notably Federal Constitutional Court of Germany), a party may file a constitutional complaint directly with the Court, without having to exhaust all other legal recourse, when a particular statute infringes upon his or her constitutional rights.

Although the Constitutional Court and the Supreme Court are treated as coequal (see Article 15 of the Constitutional Court Act[2]), the two courts have persistently come into conflict with each other over which of them is the final arbiter of the meaning of the Constitution. The Supreme Court, which is supposed to be the court of last resort, has criticized the Constitutional Court for attempting to upend the "three-tiered trial" system—referring to the conventional practice of allowing appeals up to twice—and placing itself above the Supreme Court. In 2022, the relationship between the two high courts seemingly came to a head when the Constitutional Court overturned a Supreme Court decision without declaring the relevant statute unconstitutional, holding that the statute itself does not violate the Constitution but its particular application does. The Supreme Court publicly denounced the ruling, saying that it entails the unacceptable implication that the ordinary courts' decisions fall under the Constitutional Court's jurisdiction, which subjugates the Supreme Court to the Constitutional Court.

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

History

After regaining independence from the Japanese colonial rule in 1945, there were multiple attempts to establish an independent constitutional court to exercise judicial review. Members of the Constitutional Drafting Committee prior to the first republic debated whether Korea's system of constitutional review should be modeled after the United States or continental Europe. Kwon Seung-ryul's proposal followed the American judicial system where only the Supreme Court interprets the constitution, whereas Yoo Jin-oh's proposal followed the European model with a constitutional court. The Constitutional Committee (Korean: 헌법위원회) of the first republic was the result of a compromise between the two proposals. According to the 1948 Constitution, the vice president chaired the Constitutional Committee, the National Assembly appointed five assemblymen as committee members (after the 1952 constitutional amendment, three from the House of Representatives and two from the House of Councillors), and the chief justice of the Supreme Court recommended five from the Supreme Court justices to the Committee.

Syngman Rhee's dictatorial rule, however, sabotaged the Committee's normal operation, and as a result, the Committee was able to adjudicate only six cases, two of which ruled the statutes at issue unconstitutional. The 1952 constitutional amendment established a bicameral legislature but Syngman Rhee's regime, until its demise, refused to enact the House of Councillors election law. As a result, the upper house, required for the Constitutional Committee to function, was never formed, and the Constitutional Committee soon ground to a halt.[3]

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

After Rhee was overthrown in the April Revolution, the second republic was established through a constitutional amendment transitioning from a presidential to parliamentary system. As a part of the amendment, the Constitutional Court (Korean: 헌법재판소) was established to replace the now-defunct Committee. According to the 1960 constitutional amendment, the President, House of Councillors and the Supreme Court each designated three Constitutional Court judges. Although legislation to form the Court was passed in April of 1961, the Court never came into existence as Park Chung-hee, who later became President, launched a coup the following month and suspended the constitution.[4]

After the nominal dissolution of the military junta, President Park Chung-hee jammed through the 1962 constitutional amendment, which conferred the power to review cases on constitutionality on the Supreme Court and dissolved the Constitutional Court. Following the constitutional mandate in 1971, the Supreme Court unanimously struck down Article 2 of the National Compensation Act (Korean: 국가배상법), which restricted state liability for compensating injured soldiers while serving the country. Enraged by the decision, in the following year, Park pushed through yet another constitutional amendment, establishing the Yushin Constitution, a notoriously oppressive document that gave the president sweeping executive and legislative powers. The Yushin Constitution had an article that expressly overturned the 1971 Supreme Court decision on the National Compensation Act. Furthermore, the Supreme Court justices involved in the decision were refused reappointment and forced into retirement.

The Yushin Constitution (and the successive constitution of the fifth republic) also re-established the Constitutional Committee, but required an ordinary court to submit a formal request for constitutional review before the Committee could exercise its judicial power. Since the Supreme Court was wary of retaliation as happened in 1971, it forbade courts from making such requests, rendering the Constitutional Committee powerless.[5]

The June Struggle in 1987 led to the 1987 constitutional amendment, which finally democratized Korea and ushered in the sixth republic, which continues to this day as of January 2023. The 1987 Constitution established the Constitutional Court of Korea as we know it and empowered the Court to review matters on constitutionality.[6] Following such will of the South Korean people, the Constitutional Court has made significant landmark decisions in contemporary history of South Korea. Renowned latest decisions of the Court include the decriminalization of abortion and the impeachment of Park Geun-hye.[7]

Status

The current judicial system of South Korea, especially the Constitutional Court of Korea, was influenced by the Austrian judicial system.[8] While Austria has three apex courts, whose jurisdiction is defined in different chapters of the Austrian constitution,[9] the Constitution of South Korea[10] only establishes two apex courts. Ordinary courts with the Supreme Court of Korea at the top is established by Article 101(2) under Chapter 5 'Courts' (Korean: 법원), while the Constitutional Court of Korea is the one and only highest constitutional court established by Article 111(1) Chapter 6 'Constitutional Court' (Korean: 헌법재판소).

The drafters of the Constitution tried to emphasize that the Constitutional Court does not belong to the ordinary-court system by using different but synonymous words. The term 'jaepanso (Korean: 재판소; [d͡ʑɛːpaːnsoː])', meaning court, was used to describe the Constitutional Court, while 'beobwon (Korean: 법원; [bəːbwoːn])' was used to represent the ordinary courts. The equal status of the Constitutional Court and the Supreme Court is guaranteed by Article 15 of the Constitutional Court Act, which states that the President and the Associate Justices of the Constitutional Court should be treated the same as the Chief Justice and the Associate Justices of the Supreme Court, respectively.[11]

Composition

Justices

Article 111 of the Constitution of the Republic of Korea stipulates the size of the Constitutional Court and the nomination and appointment procedure for its Justices.[10] The Court is composed of nine Constitutional Court Justices (Korean: 헌법재판소 재판관), and the President of South Korea formally appoints each Justice.[10] However, Article 111(3) of the Constitution divides the power to nominate persons for appointment into equal thirds among the President, the National Assembly, and the Chief Justice of the Supreme Court of Korea.[10] Thus, the President has the power to both nominate and appoint three of the Constitutional Court's nine Justices, but the President must appoint the remaining six Justices from persons selected by the National Assembly or the Chief Justice of the Supreme Court. This appointment structure reflects the civil law tradition of 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 regard the power of the Constitutional Court as essentially a kind of judicial power.[12]

In order for a person to be appointed as a Constitutional Court Justice, Article 5(1) of the Constitutional Court Act requires that the person must be at least 40 years old, qualified as attorney at law, and have more than 15 years of career experience in legal practice or legal academia.[11]

While exact internal procedure for the nomination of Constitutional Court Justices is not stipulated by statutes, nomination of the three Justices from the National Assembly is usually determined by political negotiations between the ruling party in the Assembly and the first opposition party. The second opposition party also plays a role in this process when it has sufficient membership in the Assembly. When the second opposition party does not have sufficient membership in the Assembly to formally participate in nomination process, the ruling party nominates one Justice, and the first opposition party nominates another. The remaining nomination is shared between the two parties, decided by negotiation or by election when the negotiation fails. For example, former Justice Kang Il-won was nominated by the National Assembly according to negotiations between the ruling Saenuri Party and the first opposition Democratic United Party in 2012. When the second opposition party is big enough to formally participate in the appointment process, it nominates the third Justice. Current Justice Lee Young-jin is example of Justice nominated from the National Assembly by the second opposition party; the Bareunmirae Party nominated him in 2018.

Notably, Article 6(2) of the Constitutional Court Act states there should be "confirmation hearings of the National Assembly" (Korean: 국회 인사청문회) for all Constitutional Court Justices before appointment or nomination.[11] However, this procedure has been interpreted as non-binding where the Constitution itself does not require the National Assembly's confirmation or consent for the nomination or appointment.[13] Thus, the National Assembly cannot use the confirmation hearing process to block the nominations advanced by the President or the Chief Justice of the Supreme Court, or the President's appointment of such nominees.

Council of Constitutional Court Justices

The "Council of Constitutional Court Justices" (Korean: 재판관회의) is established according to article 16(1) of the Constitutional Court Act.[11] It is composed of all nine Justices (including the President of the Constitutional Court as permanent presiding Chair), and can make decisions by simple majority among a quorum of two-thirds of all Supreme Court Justices, according to article 16(2) and (3) of the Act.[11] The main role of the Council is supervisory functions for the President of the Court's power of court administration, such as the appointment of the Secretary General, the Vice Secretary General, Rapporteur Judges and other high-ranking officers over Grade III. Other issues requiring supervisory functions of the Council include making interior procedural rules and planning on fiscal issues.

President of the Constitutional Court

Main article: President of the Constitutional Court of Korea

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

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,[14] 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

Main article: List of justices of the Constitutional Court of Korea
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 / 5 years, 4 months
Lee Seon-ae January 3, 1967 (age 56) in Seoul Hwang Kyo-ahn Chief Justice (Yang Sung-tae) Seoul National University March 29, 2017 / 6 years
Lee Suk-tae April 17, 1953 (age 69) in Seoul Moon Jae-in Chief Justice (Kim Myeong-soo) Seoul National University September 21, 2018 / 4 years, 6 months
Lee Eunae May 21, 1966 (age 56) in Gwangju Moon Jae-in Chief Justice (Kim Myeong-soo) Seoul National University September 21, 2018 / 4 years, 6 months
Lee Jongseok February 21, 1961 (age 62) in Chilgok Moon Jae-in National Assembly (Liberty Korea) Seoul National University October 18, 2018 / 4 years, 5 months
Lee Youngjin July 25, 1961 / (age 61) in Hongseong Moon Jae-in National Assembly (Bareunmirae) Sungkyunkwan University October 18, 2018 / 4 years, 5 months
Kim Kiyoung April 9, 1968 (age 54) in Hongseong Moon Jae-in National Assembly (Democratic) Seoul National University October 18, 2018 / 4 years, 5 months
Moon Hyungbae February 11, 1966 (age 57) in Hadong Moon Jae-in (Directly) Seoul National University April 19, 2019 / 3 years, 11 months
Lee Mison January 18, 1970 (age 53) in Hwacheon Moon Jae-in (Directly) Pusan National University April 19, 2019 / 3 years, 11 months

Organization

Rapporteur Judges

Main article: Rapporteur Judge § South Korea

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[15] in French Cour de cassation or Gerichtsschreiber[16] 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[17]).

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

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

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.[18]

Building

 
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.[19] 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.[20] 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.[21]

Procedure

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

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

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.[22]

Case naming

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.[23]

Jurisdiction

 
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.[24] While organizational status of South Korean Constitutional Court is mostly influenced from Austria, scope of jurisdiction is mostly influenced from Germany.

Judicial review of statutes

Further information: Judicial review and Judiciary of South Korea § Separation of powers inside Judicial branch

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.[25] 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.

Impeachment

Further information: Impeachment
 
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.[26]

Dissolution of political parties

Further information: Defensive democracy

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),[27] 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.[28] 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.[29] 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.[30]

Competence disputes

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).[31] 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.

Constitutional complaints

Further information: Verfassungsbeschwerde

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

Below are the aggregated statistics as of 09 Feb 2021.[32]

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

  • 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.[33]

Criticism and Issues

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.[34] 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.[35] While this problem is also happening in the Supreme Court of 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.

Relationship with the Supreme Court

The relationship between the Constitutional Court of Korea and the Supreme Court of Korea is a hotly debated topic among Korean jurists.[36][37][38][39] The Constitution does not establish a clear hierarchy between the two highest courts, and the ranks of the respective chief justices are equal under the Constitutional Court Act. Since the coequal relationship of the courts relies on a piece of legislation, the National Assembly could pass an amendment and rank the heads of the courts differently, which would resolve this issue. However, as it stands, there is no remedy if the two highest courts disagree on a constitutional case.

There are several areas where the two highest courts have come into conflict. Most notably, jurisdiction over executive orders, which include presidential decrees and ordinances, can fall on either court depending on the interpretation. Article 107(2) of the Constitution states the Supreme Court shall preside over and have the final say in cases concerning the legality of executive orders. However, the Constitutional Court has held that a litigant may file a complaint directly with the Constitutional Court if the litigant believes his or her constitutional rights were infringed upon by an executive order. The Constitution also grants the Constitutional Court jurisdiction over complaints of constitutional violations as prescribed by an act of the National Assembly. In addition, the Constitutional Court Act gives the Constitutional Court the authority to review the constitutionality of all government actions. Since the Constitution itself empowers both courts to hear the same cases, this puts the two courts into endless strife.

The highest courts also fiercely disagree over the Constitutional Court's power to declare a law unconstitutional as applied (Korean: 한정위헌결정), which means the statute itself is constitutional but as it is applied by either the executive branch or inferior courts does run afoul of the Constitution. The Supreme Court of Korea does not recognize the binding power of such "unconstitutional as applied" decisions by the Constitutional Court, as the Supreme Court interprets such decisions as essentially upholding the statutes in dispute. This indicates that the Supreme Court may ignore such decisions and proceed as it sees fit, which has happened several times. The Constitutional Court may counter this by suspending state powers that may violate the Constitution, which the Constitutional Court interprets to include the Supreme Court's decision to hear a case. The Constitutional Court suspended Supreme Court trials once in 1997 and twice in 2022, all of which brought the nation on the verge of a constitutional crisis.

As both courts claim sharply divergent, conflicting interpretations of their powers and the Constitution does not expressly state which court has the final say, there is no way to resolve such conflicts within the current system.

Gallery

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    Emblem of the Constitutional Court of Korea (1988–2017)

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    Flag of the Constitutional Court of Korea (1988–2017)

  •  

    Flag of the Constitutional Court of Korea (from 2017)

See also

 
Wikisource has several original texts related to Constitutional Court of Korea decisions.

References

  1. ^ "CONSTITUTION OF THE REPUBLIC OF KOREA | 국가법령정보센터 | 영문법령 > 본문". www.law.go.kr. Retrieved 14 January 2023.
  2. ^ "대한민국 영문법령". elaw.klri.re.kr. Retrieved 14 January 2023.
  3. ^ "History of Constitutional Adjudication". Constitutional Court of Korea. Retrieved 2022-04-05.
  4. ^ "Constitutional Court of Korea > Constitutional Court of Korea > About the Court > History".
  5. ^ "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". JSTOR 26425431. Retrieved 2022-04-05.
  6. ^ "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.
  7. ^ For major decisions of the Constitutional Court of Korea, see "Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  8. ^ "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". JSTOR 840686. Retrieved 2022-04-05.
  9. ^ "The Supreme Court of Justice". Oberster Gerichtshof English Website. Retrieved 2022-04-05.
  10. ^ a b c d "Constitution of the Republic of Korea". Korea Legislation Research Institute. Retrieved 2022-04-05.
  11. ^ a b c d e "Constitutional Court Act". Korea Legislation Research Institute. Retrieved 2022-04-05.
  12. ^ 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
  13. ^ "Moon likely to ask for confirmation hearing report on embattled justice minister nominee". Yonhap News Agency. 2019-09-01. Retrieved 2022-04-05.
  14. ^ 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.
  15. ^ "les magistrats du siege" (in French). Cour de Cassation. Retrieved 2022-04-10.
  16. ^ "Gerichtsschreiber und Gerichtsschreiberinnen" (in German). Bundesgericht. Retrieved 2022-04-10.
  17. ^ "Sanders, A. (2020). Judicial Assistants in Europe – A Comparative Analysis. International Journal for Court Administration, 11(3), 2". doi:10.36745/ijca.360. S2CID 229516417. Retrieved 2022-04-10. {{cite journal}}: Cite journal requires |journal= (help)
  18. ^ "Constitutional Research Institute, Official Website". Retrieved 2022-04-05.
  19. ^ "1993, 한국건축문화대상" (in Korean). Architecture & Urban Research Institute. Retrieved 2022-04-05.
  20. ^ "Building". Constitutional Court of Korea. Retrieved 2022-04-05.
  21. ^ "Open Hearings". Constitutional Court of Korea. Retrieved 2022-04-05.
  22. ^ "Impeachment deliberation kicks off". Yonhap News Agency. 2017-03-01. Retrieved 2022-04-05.
  23. ^ "Case number, Search Guide for Decisions". Constitutional Court of Korea. Retrieved 2022-04-05.
  24. ^ For more detailed introduction of the jurisdiction, see "Types of Jurisdiction". Constitutional Court of Korea. Retrieved 2022-04-05.
  25. ^ 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.
  26. ^ "2004Hun-Na1, Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  27. ^ "Proceedings for the prohibition of political parties". Federal Constitutional Court. Retrieved 2022-04-05.
  28. ^ "South Korea: Unprecedented Claim Filed with Constitutional Court to Dissolve a Political Party". Library of Congress, United States. Retrieved 2022-04-05.
  29. ^ "2013Hun-Da1, Major Decisions in Brief". Constitutional Court of Korea. Retrieved 2022-04-05.
  30. ^ "South Korea's Political Divisions on Display With Lee Seok-ki Case". The Diplomat. Retrieved 2022-04-05.
  31. ^ "Organstreit proceedings". Federal Constitutional Court. Retrieved 2022-04-05.
  32. ^ "Constitutional Court Korea > > Jurisdiction > Statistics". Constitutional Court of Korea. Retrieved 2021-02-09.
  33. ^ "Korea, Republic, Member states". Venice Commission. Retrieved 2022-04-05.
  34. ^ 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.
  35. ^ "Constitutional Court shuts doors". Korea JoongAng Daily. 2018-09-19. Retrieved 2022-04-05.
  36. ^ Kim, Hyunchul (30 September 2020). "A Study on the Reform of the Judiciary Structure — Focussing on the Conflict between the Constitutional Court and the Supreme Court —". Yonsei Law Review. 30 (3): 259–307. doi:10.21717/ylr.30.3.9. S2CID 226360239. Retrieved 14 January 2023.
  37. ^ Hyeon, Nam Bok (2021). "Loesungen der Konflikten zwischen KVerfG und KGG in Sued-Korea". Constitutional Law (in Kanuri). pp. 495–536. Retrieved 14 January 2023.
  38. ^ 최, 완주 (2006). "Reform der koreanischen Verfassungsgerichtsbarkeit". Korean Lawyers Association Journal (in Kanuri). pp. 19–60. Retrieved 14 January 2023.
  39. ^ Kim, Dai-Whan (2012). "Die Beziehungen zwischen Gerichte und Verfassungsgericht aus dem Standpunkt der Überprüfungsgegenstände der Verfassungsmäßigkeit". Public Law (in Kanuri). pp. 1–27. Retrieved 14 January 2023.

External links

  • the Constitutional Court of Korea Official Website
  • The Constitution of the Republic of Korea (translated into English), Korea Legislation Research Institute
  • Constitutional Court Act (translated into English), Korea Legislation Research Institute
  • Thirty Years of the Constitutional Court of Korea (1988-2018), published and downloadable by the Constitutional Court of Korea

April 06, 2023
constitutional, court, korea, coordinates, 5780, 9847, 5780, 9847, korean, 헌법재판소, hanja, 憲法裁判所, heonbeop, jaepanso, highest, courts, along, with, supreme, court, south, korea, judiciary, that, exercises, constitutional, review, seated, jongno, seoul, south, ko. Coordinates 37 34 41 N 126 59 05 E 37 5780 N 126 9847 E 37 5780 126 9847 The Constitutional Court of Korea Korean 헌법재판소 Hanja 憲法裁判所 RR Heonbeop Jaepanso is one of the highest courts along with the Supreme Court in South Korea s judiciary that exercises constitutional review seated in Jongno Seoul The South Korean Constitution vests judicial power in courts composed of judges which establishes the ordinary court system but also separates an independent constitutional court and grants it exclusive jurisdiction over matters of constitutionality Specifically Chapter VI Article 111 1 of the South Korean Constitution specifies the following cases to be exclusively reviewed by the Constitutional Court 1 The constitutionality of a law upon the request of the courts Impeachment Dissolution of a political party Competence disputes between State agencies between State agencies and local governments and between local governments and Constitutional complaints as prescribed by the Constitutional Court Act Constitutional Court of Korea대한민국 헌법재판소Emblem of the Constitutional Court of KoreaConstitutional Court of Koreain Jongno SeoulEstablished1988 35 years ago 1988 LocationJongno SeoulComposition methodAppointed by President upon nomination of equal portions from National Assembly Supreme Court Chief Justice and the PresidentAuthorized byConstitution of South Korea Chapter VIJudge term lengthSix years renewable mandatory retirement at the age of 70 Number of positions9 by constitution Websiteccourt wbr go wbr krPresidentCurrentlyYoo Nam seokSince21 September 2018 2018 09 21 Constitutional Court of KoreaLogo of the Constitutional Court of KoreaKorean nameHangul헌법재판소Hanja憲法裁判所Revised RomanizationHeonbeop JaepansoMcCune ReischauerHŏnpŏp Chaep anso Article 111 2 states that the Constitutional Court shall consist of nine justices qualified to be court judges all of whom shall be appointed by the president of South Korea Even though all nine justices must be appointed by the president Article 111 3 states that the National Assembly and the Chief Justice shall nominate three justices each which implies the remaining three are nominated by the president of South Korea Article 111 4 states that the candidate for the president of the Constitutional Court must obtain the approval of the National Assembly before the President appoints them The South Korean Constitution broadly delineates the roles of courts both ordinary courts and the Constitutional Court and entrusts the National Assembly to legislate the specifics of their functions The National Assembly soon after the ninth constitutional amendment that ended decades of dictatorship in South Korea passed the Constitutional Court Act Korean 헌법재판소법 which spells out a detailed organizational structure of the Court establishes the hierarchy of judicial officers and their roles within the Court and most importantly provides ways in which people of Korea can appeal to the Court Unlike other constitutional courts most notably Federal Constitutional Court of Germany a party may file a constitutional complaint directly with the Court without having to exhaust all other legal recourse when a particular statute infringes upon his or her constitutional rights Although the Constitutional Court and the Supreme Court are treated as coequal see Article 15 of the Constitutional Court Act 2 the two courts have persistently come into conflict with each other over which of them is the final arbiter of the meaning of the Constitution The Supreme Court which is supposed to be the court of last resort has criticized the Constitutional Court for attempting to upend the three tiered trial system referring to the conventional practice of allowing appeals up to twice and placing itself above the Supreme Court In 2022 the relationship between the two high courts seemingly came to a head when the Constitutional Court overturned a Supreme Court decision without declaring the relevant statute unconstitutional holding that the statute itself does not violate the Constitution but its particular application does The Supreme Court publicly denounced the ruling saying that it entails the unacceptable implication that the ordinary courts decisions fall under the Constitutional Court s jurisdiction which subjugates the Supreme Court to the Constitutional Court The Constitutional Court of Korea is the seat of the Permanent Secretariat for Research and Development of the Association of Asian Constitutional Courts and Equivalent Institutions Contents 1 History 2 Status 3 Composition 3 1 Justices 3 1 1 Council of Constitutional Court Justices 3 2 President of the Constitutional Court 3 3 Tenure 3 4 Current justices 4 Organization 4 1 Rapporteur Judges 4 2 Department of Court Administration 4 3 Constitutional Research Institute 5 Building 6 Procedure 6 1 Votes and Quorum of Full Bench 6 2 Presiding Justice and Justice in charge 6 3 Case naming 7 Jurisdiction 7 1 Judicial review of statutes 7 2 Impeachment 7 3 Dissolution of political parties 7 4 Competence disputes 7 5 Constitutional complaints 8 Statistics 9 International relations 10 Criticism and Issues 10 1 Relationship with the Supreme Court 11 Gallery 12 See also 13 References 14 External linksHistory EditAfter regaining independence from the Japanese colonial rule in 1945 there were multiple attempts to establish an independent constitutional court to exercise judicial review Members of the Constitutional Drafting Committee prior to the first republic debated whether Korea s system of constitutional review should be modeled after the United States or continental Europe Kwon Seung ryul s proposal followed the American judicial system where only the Supreme Court interprets the constitution whereas Yoo Jin oh s proposal followed the European model with a constitutional court The Constitutional Committee Korean 헌법위원회 of the first republic was the result of a compromise between the two proposals According to the 1948 Constitution the vice president chaired the Constitutional Committee the National Assembly appointed five assemblymen as committee members after the 1952 constitutional amendment three from the House of Representatives and two from the House of Councillors and the chief justice of the Supreme Court recommended five from the Supreme Court justices to the Committee Syngman Rhee s dictatorial rule however sabotaged the Committee s normal operation and as a result the Committee was able to adjudicate only six cases two of which ruled the statutes at issue unconstitutional The 1952 constitutional amendment established a bicameral legislature but Syngman Rhee s regime until its demise refused to enact the House of Councillors election law As a result the upper house required for the Constitutional Committee to function was never formed and the Constitutional Committee soon ground to a halt 3 Coup d etat of Park Chung hee dissolved the Constitutional Court of the Second Republic of Korea After Rhee was overthrown in the April Revolution the second republic was established through a constitutional amendment transitioning from a presidential to parliamentary system As a part of the amendment the Constitutional Court Korean 헌법재판소 was established to replace the now defunct Committee According to the 1960 constitutional amendment the President House of Councillors and the Supreme Court each designated three Constitutional Court judges Although legislation to form the Court was passed in April of 1961 the Court never came into existence as Park Chung hee who later became President launched a coup the following month and suspended the constitution 4 After the nominal dissolution of the military junta President Park Chung hee jammed through the 1962 constitutional amendment which conferred the power to review cases on constitutionality on the Supreme Court and dissolved the Constitutional Court Following the constitutional mandate in 1971 the Supreme Court unanimously struck down Article 2 of the National Compensation Act Korean 국가배상법 which restricted state liability for compensating injured soldiers while serving the country Enraged by the decision in the following year Park pushed through yet another constitutional amendment establishing the Yushin Constitution a notoriously oppressive document that gave the president sweeping executive and legislative powers The Yushin Constitution had an article that expressly overturned the 1971 Supreme Court decision on the National Compensation Act Furthermore the Supreme Court justices involved in the decision were refused reappointment and forced into retirement The Yushin Constitution and the successive constitution of the fifth republic also re established the Constitutional Committee but required an ordinary court to submit a formal request for constitutional review before the Committee could exercise its judicial power Since the Supreme Court was wary of retaliation as happened in 1971 it forbade courts from making such requests rendering the Constitutional Committee powerless 5 The June Struggle in 1987 led to the 1987 constitutional amendment which finally democratized Korea and ushered in the sixth republic which continues to this day as of January 2023 The 1987 Constitution established the Constitutional Court of Korea as we know it and empowered the Court to review matters on constitutionality 6 Following such will of the South Korean people the Constitutional Court has made significant landmark decisions in contemporary history of South Korea Renowned latest decisions of the Court include the decriminalization of abortion and the impeachment of Park Geun hye 7 Status EditThe current judicial system of South Korea especially the Constitutional Court of Korea was influenced by the Austrian judicial system 8 While Austria has three apex courts whose jurisdiction is defined in different chapters of the Austrian constitution 9 the Constitution of South Korea 10 only establishes two apex courts Ordinary courts with the Supreme Court of Korea at the top is established by Article 101 2 under Chapter 5 Courts Korean 법원 while the Constitutional Court of Korea is the one and only highest constitutional court established by Article 111 1 Chapter 6 Constitutional Court Korean 헌법재판소 The drafters of the Constitution tried to emphasize that the Constitutional Court does not belong to the ordinary court system by using different but synonymous words The term jaepanso Korean 재판소 d ʑɛːpaːnsoː meaning court was used to describe the Constitutional Court while beobwon Korean 법원 beːbwoːn was used to represent the ordinary courts The equal status of the Constitutional Court and the Supreme Court is guaranteed by Article 15 of the Constitutional Court Act which states that the President and the Associate Justices of the Constitutional Court should be treated the same as the Chief Justice and the Associate Justices of the Supreme Court respectively 11 Composition EditJustices Edit Article 111 of the Constitution of the Republic of Korea stipulates the size of the Constitutional Court and the nomination and appointment procedure for its Justices 10 The Court is composed of nine Constitutional Court Justices Korean 헌법재판소 재판관 and the President of South Korea formally appoints each Justice 10 However Article 111 3 of the Constitution divides the power to nominate persons for appointment into equal thirds among the President the National Assembly and the Chief Justice of the Supreme Court of Korea 10 Thus the President has the power to both nominate and appoint three of the Constitutional Court s nine Justices but the President must appoint the remaining six Justices from persons selected by the National Assembly or the Chief Justice of the Supreme Court This appointment structure reflects the civil law tradition of 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 regard the power of the Constitutional Court as essentially a kind of judicial power 12 In order for a person to be appointed as a Constitutional Court Justice Article 5 1 of the Constitutional Court Act requires that the person must be at least 40 years old qualified as attorney at law and have more than 15 years of career experience in legal practice or legal academia 11 While exact internal procedure for the nomination of Constitutional Court Justices is not stipulated by statutes nomination of the three Justices from the National Assembly is usually determined by political negotiations between the ruling party in the Assembly and the first opposition party The second opposition party also plays a role in this process when it has sufficient membership in the Assembly When the second opposition party does not have sufficient membership in the Assembly to formally participate in nomination process the ruling party nominates one Justice and the first opposition party nominates another The remaining nomination is shared between the two parties decided by negotiation or by election when the negotiation fails For example former Justice Kang Il won was nominated by the National Assembly according to negotiations between the ruling Saenuri Party and the first opposition Democratic United Party in 2012 When the second opposition party is big enough to formally participate in the appointment process it nominates the third Justice Current Justice Lee Young jin is example of Justice nominated from the National Assembly by the second opposition party the Bareunmirae Party nominated him in 2018 Notably Article 6 2 of the Constitutional Court Act states there should be confirmation hearings of the National Assembly Korean 국회 인사청문회 for all Constitutional Court Justices before appointment or nomination 11 However this procedure has been interpreted as non binding where the Constitution itself does not require the National Assembly s confirmation or consent for the nomination or appointment 13 Thus the National Assembly cannot use the confirmation hearing process to block the nominations advanced by the President or the Chief Justice of the Supreme Court or the President s appointment of such nominees 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 11 It is composed of all nine Justices including the President of the Constitutional Court as permanent presiding Chair and can make decisions by simple majority among a quorum of two thirds of all Supreme Court Justices according to article 16 2 and 3 of the Act 11 The main role of the Council is supervisory functions for the President of the Court s power of court administration such as the appointment of the Secretary General the Vice Secretary General Rapporteur Judges and other high ranking officers over Grade III Other issues requiring supervisory functions of the Council include making interior procedural rules and planning on fiscal issues President of the Constitutional Court Edit Main article President of the Constitutional Court of Korea 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 14 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 Main article List of justices of the Constitutional Court of Korea Name Born Appointed by Recommended by Education First day Length of serviceYoo Nam seok President May 1 1957 age 65 in Mokpo Moon Jae in Directly Seoul National University November 11 2017 5 years 4 monthsLee Seon ae January 3 1967 age 56 in Seoul Hwang Kyo ahn Chief Justice Yang Sung tae Seoul National University March 29 2017 6 yearsLee Suk tae April 17 1953 age 69 in Seoul Moon Jae in Chief Justice Kim Myeong soo Seoul National University September 21 2018 4 years 6 monthsLee Eunae May 21 1966 age 56 in Gwangju Moon Jae in Chief Justice Kim Myeong soo Seoul National University September 21 2018 4 years 6 monthsLee Jongseok February 21 1961 age 62 in Chilgok Moon Jae in National Assembly Liberty Korea Seoul National University October 18 2018 4 years 5 monthsLee Youngjin July 25 1961 age 61 in Hongseong Moon Jae in National Assembly Bareunmirae Sungkyunkwan University October 18 2018 4 years 5 monthsKim Kiyoung April 9 1968 age 54 in Hongseong Moon Jae in National Assembly Democratic Seoul National University October 18 2018 4 years 5 monthsMoon Hyungbae February 11 1966 age 57 in Hadong Moon Jae in Directly Seoul National University April 19 2019 3 years 11 monthsLee Mison January 18 1970 age 53 in Hwacheon Moon Jae in Directly Pusan National University April 19 2019 3 years 11 monthsOrganization EditRapporteur Judges Edit Main article Rapporteur Judge South Korea 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 referendaires 15 in French Cour de cassation or Gerichtsschreiber 16 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 17 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 18 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 19 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 20 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 21 Procedure EditAs 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 22 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 23 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 24 While organizational status of South Korean Constitutional Court is mostly influenced from Austria scope of jurisdiction is mostly influenced from Germany Judicial review of statutes Edit Further information Judicial review and Judiciary of South Korea Separation of powers inside Judicial branch 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 25 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 Impeachment Edit Further information Impeachment 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 26 Dissolution of political parties Edit Further information Defensive democracy 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 27 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 28 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 29 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 30 Competence disputes 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 31 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 Constitutional complaints Edit Further information Verfassungsbeschwerde 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 EditBelow are the aggregated statistics as of 09 Feb 2021 32 Type Total Constitutionality ofstatutes Impeachment Dissolution of a political party Competencedispute Constitutional complaintSub total 68 I 68 IIFiled 41 615 1 008 2 2 115 40 488 32 074 8 414Settled 40 303 957 2 2 110 39 232 31 264 7 968Dismissed by panel 24 476 24 476 19 915 4 561Decided byfull bench Unconstitutional 655 294 361 113 248Nonconformity 262 82 180 75 105Conditionally unconstitutional 70 18 52 20 32Conditionallyconstitutional 28 7 21 21Constitutional 2 843 359 2 484 4 2 480Upholding 794 1 1 19 773 773Rejected 7 998 1 27 7 970 7 970Dismissed 2 115 73 1 45 1 996 1 611 385Other 10 10 8 2Withdrawn 1 052 124 19 909 775 134Pending 1 312 51 5 1 256 810 446International relations EditVenice 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 33 Association of Asian Constitutional Courts and Equivalent Institutions The Republic of Korea is founding member state of the Association of Asian Constitutional Courts amp Equivalent Institutions AACC and seat for permanent secretariat of the AACC President of the Constitutional Court of Korea attends the Board of AACC as representing the Republic of Korea Criticism and Issues EditIt 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 34 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 35 While this problem is also happening in the Supreme Court of 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 Relationship with the Supreme Court Edit The relationship between the Constitutional Court of Korea and the Supreme Court of Korea is a hotly debated topic among Korean jurists 36 37 38 39 The Constitution does not establish a clear hierarchy between the two highest courts and the ranks of the respective chief justices are equal under the Constitutional Court Act Since the coequal relationship of the courts relies on a piece of legislation the National Assembly could pass an amendment and rank the heads of the courts differently which would resolve this issue However as it stands there is no remedy if the two highest courts disagree on a constitutional case There are several areas where the two highest courts have come into conflict Most notably jurisdiction over executive orders which include presidential decrees and ordinances can fall on either court depending on the interpretation Article 107 2 of the Constitution states the Supreme Court shall preside over and have the final say in cases concerning the legality of executive orders However the Constitutional Court has held that a litigant may file a complaint directly with the Constitutional Court if the litigant believes his or her constitutional rights were infringed upon by an executive order The Constitution also grants the Constitutional Court jurisdiction over complaints of constitutional violations as prescribed by an act of the National Assembly In addition the Constitutional Court Act gives the Constitutional Court the authority to review the constitutionality of all government actions Since the Constitution itself empowers both courts to hear the same cases this puts the two courts into endless strife The highest courts also fiercely disagree over the Constitutional Court s power to declare a law unconstitutional as applied Korean 한정위헌결정 which means the statute itself is constitutional but as it is applied by either the executive branch or inferior courts does run afoul of the Constitution The Supreme Court of Korea does not recognize the binding power of such unconstitutional as applied decisions by the Constitutional Court as the Supreme Court interprets such decisions as essentially upholding the statutes in dispute This indicates that the Supreme Court may ignore such decisions and proceed as it sees fit which has happened several times The Constitutional Court may counter this by suspending state powers that may violate the Constitution which the Constitutional Court interprets to include the Supreme Court s decision to hear a case The Constitutional Court suspended Supreme Court trials once in 1997 and twice in 2022 all of which brought the nation on the verge of a constitutional crisis As both courts claim sharply divergent conflicting interpretations of their powers and the Constitution does not expressly state which court has the final say there is no way to resolve such conflicts within the current system Gallery Edit Emblem of the Constitutional Court of Korea 1988 2017 Flag of the Constitutional Court of Korea 1988 2017 Flag of the Constitutional Court of Korea from 2017 See also Edit Wikisource has several original texts related to Constitutional Court of Korea decisions Constitution of South Korea Politics of South Korea Government of South Korea Judiciary of South Korea President of the Constitutional Court of Korea List of justices of the Constitutional Court of Korea Rapporteur Judge Supreme Court of Korea Venice Commission Association of Asian Constitutional Courts and Equivalent InstitutionsReferences Edit CONSTITUTION OF THE REPUBLIC OF KOREA 국가법령정보센터 영문법령 gt 본문 www law go kr Retrieved 14 January 2023 대한민국 영문법령 elaw klri re kr Retrieved 14 January 2023 History of Constitutional Adjudication Constitutional Court of Korea Retrieved 2022 04 05 Constitutional Court of Korea gt Constitutional Court of Korea gt About the Court gt History 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 JSTOR 26425431 Retrieved 2022 04 05 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 For major decisions of the Constitutional Court of Korea see Major Decisions in Brief Constitutional Court of Korea Retrieved 2022 04 05 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 JSTOR 840686 Retrieved 2022 04 05 The Supreme Court of Justice Oberster Gerichtshof English Website Retrieved 2022 04 05 a b c d Constitution of the Republic of Korea Korea Legislation Research Institute Retrieved 2022 04 05 a b c d e Constitutional Court Act Korea Legislation Research Institute Retrieved 2022 04 05 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 Moon likely to ask for confirmation hearing report on embattled justice minister nominee Yonhap News Agency 2019 09 01 Retrieved 2022 04 05 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 les magistrats du siege in French Cour de Cassation Retrieved 2022 04 10 Gerichtsschreiber und Gerichtsschreiberinnen in German Bundesgericht Retrieved 2022 04 10 Sanders A 2020 Judicial Assistants in Europe A Comparative Analysis International Journal for Court Administration 11 3 2 doi 10 36745 ijca 360 S2CID 229516417 Retrieved 2022 04 10 a href Template Cite journal html title Template Cite journal cite journal a Cite journal requires journal help Constitutional Research Institute Official Website Retrieved 2022 04 05 1993 한국건축문화대상 in Korean Architecture amp Urban Research Institute Retrieved 2022 04 05 Building Constitutional Court of Korea Retrieved 2022 04 05 Open Hearings Constitutional Court of Korea Retrieved 2022 04 05 Impeachment deliberation kicks off Yonhap News Agency 2017 03 01 Retrieved 2022 04 05 Case number Search Guide for Decisions Constitutional Court of Korea Retrieved 2022 04 05 For more detailed introduction of the jurisdiction see Types of Jurisdiction Constitutional Court of Korea Retrieved 2022 04 05 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 2004Hun Na1 Major Decisions in Brief Constitutional Court of Korea Retrieved 2022 04 05 Proceedings for the prohibition of political parties Federal Constitutional Court Retrieved 2022 04 05 South Korea Unprecedented Claim Filed with Constitutional Court to Dissolve a Political Party Library of Congress United States Retrieved 2022 04 05 2013Hun Da1 Major Decisions in Brief Constitutional Court of Korea Retrieved 2022 04 05 South Korea s Political Divisions on Display With Lee Seok ki Case The Diplomat Retrieved 2022 04 05 Organstreit proceedings Federal Constitutional Court Retrieved 2022 04 05 Constitutional Court Korea gt gt Jurisdiction gt Statistics Constitutional Court of Korea Retrieved 2021 02 09 Korea Republic Member states Venice Commission Retrieved 2022 04 05 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 Constitutional Court shuts doors Korea JoongAng Daily 2018 09 19 Retrieved 2022 04 05 Kim Hyunchul 30 September 2020 A Study on the Reform of the Judiciary Structure Focussing on the Conflict between the Constitutional Court and the Supreme Court Yonsei Law Review 30 3 259 307 doi 10 21717 ylr 30 3 9 S2CID 226360239 Retrieved 14 January 2023 Hyeon Nam Bok 2021 Loesungen der Konflikten zwischen KVerfG und KGG in Sued Korea Constitutional Law in Kanuri pp 495 536 Retrieved 14 January 2023 최 완주 2006 Reform der koreanischen Verfassungsgerichtsbarkeit Korean Lawyers Association Journal in Kanuri pp 19 60 Retrieved 14 January 2023 Kim Dai Whan 2012 Die Beziehungen zwischen Gerichte und Verfassungsgericht aus dem Standpunkt der Uberprufungsgegenstande der Verfassungsmassigkeit Public Law in Kanuri pp 1 27 Retrieved 14 January 2023 External links Editthe Constitutional Court of Korea Official Website The Constitution of the Republic of Korea translated into English Korea Legislation Research Institute Constitutional Court Act translated into English Korea Legislation Research Institute Thirty Years of the Constitutional Court of Korea 1988 2018 published and downloadable by the Constitutional Court of Korea Retrieved from https en wikipedia org w index php title Constitutional Court of Korea amp oldid 1144013129, wikipedia, wiki, book, books, library,

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