Judiciary of South Korea

The judiciary of South Korea (Korean: 대한민국 사법부, 대한민국의 사법기관) is the judicial branch (Korean: 사법부) of South Korean central government, established by Chapter 5 and 6 of the Constitution of South Korea.[1]

  • Under the Chapter 5 of constitution, ordinary courts on all cases except matters of Constitutional review, and military courts as extraordinary court on matters of military justice are defined. And these ordinary courts and military courts shall have Supreme Court of Korea as their highest court. Generally, ordinary courts have three-level hierarchy and constituted by independent Judges, fourteen Supreme Court Justices by statute and one Chief Justice of Supreme court among Justices. Yet military courts are organized only in first instance of three-level hierarchy at peacetime, and their final appellate always falls on jurisdiction of the Supreme Court even in wartime.
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These two chapters describe judiciary of South Korea into two groups by jurisdiction of matters.[2] One is Constitutional Court which is highest court on adjudication of matters mainly on Constitutionality. Another is ordinary courts on matters except jurisdiction of Constitutional Court. These ordinary courts are shall have Supreme Court as their highest court.

Chief Justice of Supreme Court and President of Constitutional court are treated as two equivalent heads of judiciary branch in South Korea by article 15 of Constitutional Court Act.[3] Though, since relationship between Supreme Court and Constitutional Court is not thoroughly defined anywhere in Constitution of South Korea and other related statutes, these two highest court of South Korea have been struggling about jurisdiction against each other for long years.

Institutional traits

Diversified supreme courts
See also: Supreme court § Civil law jurisdictions

As influenced from European judiciaries[4] such as Austrian judicial system and German judicial system[5] contemporary South Korean judiciary divides its role of highest court into two apex Courts.

Further information: Law schools in South Korea

Before South Korea adopted American law school system (Korean: 법학전문대학원) in year 2007, South Korea trained its legal professionals mainly by Judicial Research and Training Institute (JRTI, Korean: 사법연수원). Another route was direct recruitment by South Korean Armed Forces as 'Judge Advocates' (Korean: 군법무관). The trainees at JRTI was selected by an nation-wide exam on jurisprudence called 'Judicial exam' (Korean: 사법시험). These trainees were commonly trained and competed against each other in the JRTI for 2 years, as their career option after graduation was restricted according to graduation records of JRTI. However, after reform of 2007, all of legal professionals in South Korea (except paralegals such as Judicial scrivener) are trained by American styled 3-year law school system.[6]

Ordinary courts

Ordinary courts (Korean: 일반법원), usually called as just 'Courts' (Korean: 법원), of South Korea are established by Chapter 5 of Constitution of South Korea. All of ordinary courts are under the jurisdiction of the national judiciary; independent local courts are not permitted. And these ordinary courts are divided into 'Supreme Court' and 'other (lower) courts' under Article 101(2) of the Constitution.[1] In this way, the Constitutional Court of Korea explains that the Constitution itself does not exactly guarantee three level instance system; The article 101(2) of the Constitution means, according to the Constitutional Court,[7] that final appellate jurisdiction of ordinary cases should always be with the Supreme Court of Korea. Thus, enacting some of cases outside of the Constitutional Court's jurisdiction as available of only one chance of appeal or no chance of appeal is constitutionally valid in South Korea unless such case is finally ruled in the Supreme Court.[8]

Statutory ground for hierarchy of ordinary courts, including three-tiered instance system for typical cases, is defined by 'Court Organization Act[9]' of South Korea. Under article 3(1), 28 and 28-4 of the Court Organization Act, hierarchy of ordinary courts in South Korea has three levels; District Courts (plus family court, bankruptcy court, and administrative court, which are specialized courts on matters of family, bankruptcy and administration laws), High Courts (plus patent court which is specialized appellate court on matters of intellectual property, for reviewing ruling or decision made by the 'Intellectual Property Trial And Appeal Board[10]'[11]) and Supreme Court. In this way, concept of 'other (lower) courts at specified levels' of article 101(2) of the Constitution is divided into 6 courts, so there are basically 7 different types of courts including the Supreme Court inside hierarchy of ordinary judicial system, as described in article 3(1) of the Act; Supreme Court, High Court, Patent Court, District Court, Family Court, Administrative Court, and Bankruptcy Court. Branch courts and Municipal courts are regarded as part of District Court and Family Court under article 3(2) of the Act.[9]

Supreme Court of Korea
Main article: Supreme Court of Korea

The Supreme Court (Korean: 대법원), seated in Seocho-gu, Seoul, consists of fourteen Supreme Court Justices, including one Chief Justice. Chief Justice of Supreme Court is appointed by President of South Korea with the consent of the National Assembly, and has authority over administration of all ordinary courts. Other Justices are also appointed by President of South Korea with consent of National Assembly, though candidates for new Justice is recommended by Chief Justice. The Justices and Chief Justice must be at least 45 years old, and shall have at least 20 years of experience practicing law with license of attorney at law. They serve for six-year terms; the Chief Justice cannot be reappointed, but term of the other Justices are renewable under article 105(2) of constitution. However, none of Justices tried to renew his/her term after Sixth Republic since it could harm independence of judiciary by increasing influence of executive President. Justices and Chief Justice cannot be older than age 70.

Judges in Research division

Justices in Supreme Court are assisted by seconded Judges from sub-Supreme courts, and they are called 'Judges in Research division (Korean: 재판연구관)' or 'Research Judges'. This secondment is decided by Chief Justice of Supreme Court. Because under article 44 of Court Organization Act, the Chief Justice has power to transfer every single Judge from one of ordinary courts to any other ordinary courts in South Korea. Function of seconded Judges in Supreme Court is similar to Law clerks in ordinary courts. They serve about 2 years as judicial assistant for Justices, yet not all seconded Judges are not individually attached to one of Justice, as some of seconded Judges serve as research group or panel to assist decisions of whole Supreme Court.

National Court Administration

Administration affairs(including fiscal, personnel and human resource affairs) of all ordinary courts in South Korea is governed by institution called 'The National Court Administration (NCA, Korean: 법원행정처)', which is established in Supreme Court under article 19 of Court Organization Act.[12] Head of NCA is appointed by Chief Justice, and is appointed among Justices. Though this centralized power on Chief Justice can eventually harm independence of individual Judges and even Justices, NCA is also serves for judicial independence from other branches of government.

High Courts and District Courts

Below the Supreme Court come appellate courts which are called 'High Courts (Korean: 고등법원)', stationed in six of the country's major cities. High Courts typically consist of a panel of three judges. Below these are District Courts (Korean: 지방법원) and its Branch Courts (Korean: 지방법원 지원), which exist in most of the large cities of South Korea. Below these are Municipal Courts (Korean: 시·군법원), positioned all over the country and limited to small claims and petty offenses. Municipal courts usually do not have jurisdiction over criminal cases. 'Specialized courts (Korean: 전문법원, not to be confused with 'Special courts' under article 110(1) of Constitution)' also exist for family, administrative, bankruptcy and patent cases.

Judges

Judges (Korean: 판사) except Supreme Court Justices and Chief Justice, serving in ordinary courts are appointed by the Chief Justice with the consent of the Council of Supreme Court Justices. Judges serve for ten-year renewable terms, up to age of 65. After reform of ordinary courts in early 2010's, at least 10 years of experience practicing law with license of attorney at law is required for Judge.[13] Goal of reform was changing structure of ordinary courts as courts in common law system, such as United States. This reform of courts in early 2010's includes abolishing advancement and promotion opportunities for Judges to become head of each High Court and District Court. Now in year 2022, heads of each High Court and District Court (which are called as 'Chief Judge' of each court) are mainly elected among and by Judges in each court, and appointed by Chief Justice in Supreme Court. Before this reform, all Judges were appointed just after finishing two-year training program in Judicial Research and Training Institute(JRTI), which selects its trainees who passed difficult test on matters of jurisprudence after LL.B. degree.

Judges in South Korea is protected from external political pressure under article 106(1) of constitution. No judge can be removed from office unless the judges is imprisoned as criminal punishment. However, It is noteworthy that Judges in South Korea can be refused from renewing its term, and can be transferred to different court against their will.

Judicial Assistant Officials

Judicial Assistant Officials (JAO, Korean: 사법보좌관) is a Judge-equivalent officer who has limited power to rule over several procedural matters under supervision of Judges. Following article 54 of Court Organization Act, JAO is appointed among court officials with 5 to 10 years of experience on procedural matters in court. Unless interested party raise objection on ruling of JAO, its ruling has equivalent power to ruling of Judge. When ruling of JAO is challenged with objection, supervising Judge should make decision whether or not to accept such objection. JAO system is mainly influenced by German judicial system, called Rechtspfleger.

Law Clerks

From year 2011, fresh J.D. graduates from Law school are selected as Law clerk (Korean: 재판연구원) to assist Judges in High courts and District courts for 2 to 3 years, under article 53-2 of Court Organization Act. Law clerks in South Korea is recruited by each of six High courts, though some of top-tier graduates are appointed as 'Judicial Researcher' at the Supreme Court, which is basically a law clerk for Supreme Court Justices. It is noteworthy that Law clerks in South Korea are not recruited by individual Judges and Supreme Court Justices.

Military courts

Under article 110(1) of the Constitution and 'Military Court Act',[14] Military Court (Korean: 군사법원, or Courts-martial) is established permanently in both peacetime and wartime as 'Special court (Korean: 특별법원, or Extraordinary court)' in each South Korean armed forces. As Military Courts are not established inside Court Organization Act's boundary, these Courts are regarded as outside of conventional judicial hierarchy made of ordinary courts. The Military Courts rule over criminal cases when the accused is member of armed forces, and they are composed of Military Judges (Korean: 군판사) constituted of Judge advocates (Korean: 군법무관) appointed by generals in South Korean armed forces. South Korean Judge advocates are military officers qualified as attorney at law in South Korea, yet not Judges in ordinary courts. However, final appellate jurisdiction of this military-criminal cases still falls under jurisdiction of Supreme Court of Korea according to article 110(2) of the Constitution. Permanent military court even established in peacetime created various problems as South Korea runs mandatory conscription system. After repeated crimes inside armed forces, the permanent military court in peacetime was pointed out as one of main reason for continued suffer of victims, because old military court system in South Korea was inclined to protecting high-ranking military officers even when they were criminals.[15] It led to bold reform of military court system in year 2021, abolishing High Military Court (Korean: 고등군사법원) in peacetime and transferring every appellate jurisdiction of military crime cases to Seoul High Court, which is one of High Courts in ordinary court hierarchy.[16]

Constitutional court
South Korean Constitutional Court building in Jongno, Seoul
Main article: Constitutional Court of Korea

The Constitutional Court (Korean: 헌법재판소), seated in Jongno-gu, Seoul and independent from the Supreme Court, is only and highest court on matters of adjudication on Constitutionality including Judicial review, Constitutional review on competence dispute, Constitutional complaint, plus deciding cases of impeachment and cases of dissolution of unconstitutional political parties.[17] Other judicial matters are overseen by the ordinary courts. This system was newly established in the Sixth Republic, to reinforce protection on fundamental rights and democracy against rise of authoritarian government. The Constitutional Court consists of nine Justices. Of these Justices, three are recommended by the Chief Justice of the Supreme court, three by the National Assembly, and three by the President of South Korea; however, all must be appointed by the President of South Korea. The President of the Constitutional Court, which is chief of Justices in the Constitutional Court, is appointed among Constitutional Court Justices by the President of South Korea with consent of the National Assembly. The Justices of Constitutional court, including President of Constitutional Court serve for six-year terms, and cannot be older than age 70. Justices except President of Constitutional court can renew its term, though most of Justices never tried to renew his/her term, as Justices in Supreme court refused its reappointment since it could harm independence of judiciary. Detailed organization and procedure of the Constitutional Court is defined under 'Constitutional Court Act[3]'

Rapporteur Judges

Under article 19 of Constitutional Court Act, Rapporteur Judges (Korean: 헌법연구관) are appointed by President of the Constitutional Court of Korea. They serve as judicial assistant for Justices in Constitutional Court.[18] Rapporteur Judges serve for ten-year renewable terms up to age of 60 and paid as same as Judges in ordinary courts. It is noticeable that Rapporteur Judges serve longer than Justices in Constitutional Court, while Research Judges serve shorter than Justices in Supreme Court. This professional assistant office is designed to ensure continuity of constitutional adjudication in South Korea. Yet some of Rapporteur Judges office is filled by seconded Judges from ordinary courts, and seconded government officials including Prosecutors. These seconded Judges and Prosecutors serve for 1 to 2 years as Rapporteur Judges.

Department of Court Administration

Under article 17 of Constitutional Court Act, Department of Court Administration (DCA, Korean: 헌법재판소사무처) is established in the Constitutional Court. Head of the Department is called as 'Secretary General', and is appointed by the President of Constitutional Court. As NCA of the Supreme Court, the Department of Court Administration deals with every matters on court administration of the Constitutional Court of Korea, including fiscal, personnel and human resource affairs. Yet while head of NCA is appointed among the Justices in the Supreme Court, the Secretary General is not appointed among the Justices in the Constitutional Court.

Separation of powers inside Judicial branch

The current Constitution of South Korea distributes power of judicial review inside judiciary between ordinary courts in Chapter 5 and constitutional court in Chapter 6. Under article 107(2) in Chapter 5, the ordinary courts including the Supreme Court have ultimate jurisdiction over reviewing constitutionality of sub-statutory decrees, regulations or actions made by administrative level. Under article 111(1) in Chapter 6, the Constitutional Court have ultimate jurisdiction over reviewing constitutionality of sub-constitutional statutes made by legislature level, even without request from the ordinary courts through article 68(2) of the Constitutional Court Act. In this structure of power separation, ordinary courts and the constitutional court can practically contend over each other's ruling. Yet the Constitution does not clarify who should arbitrate when the Supreme Court and the Constitutional Court struggles against each other.

One of major power struggle issue between two highest courts is constitutional complaint over judgment of ordinary court (Korean: 재판소원, German: Urteilsverfassungsbeschwerde). As in Austria, constitutional complaint on ordinary court's judgment is strictly forbidden according to article 68(1) of Constitutional Court Act. However, the Constitutional Court adjudicates that such article of the Act is lacks constitutionality, unless it is interpreted as constitutional complaint over judgment of ordinary court should be exceptionally allowed when the judgement applicated unconstitutional statute which is already officially nullified before the judgment by judicial review of the Constitutional Court.[19]

This kind of judicial review ruling in the Constitutional Court of Korea is called 'conditionally unconstitutional (Korean: 한정위헌)', which is actually a declaration that statute under judicial review is currently constitutional, yet the statute must be interpreted in specific way which is aligned to constitutional order interpreted by the Constitutional Court, thus all ordinary courts including the Supreme Court of Korea should be bound by such interpretation on statute of the Constitutional Court. The concept of such ruling is attempt of the Constitutional Court of Korea to adopt unrivaled status of German constitutional court, where constitutional court can suggest binding interpretation on statute to other highest ordinary courts of Germany, which is called 'constitutional interpretation of statute (German: verfassungskonforme Auslegung)'. The German constitutional court can also adjudicate constitutional complaint over judgment of ordinary court, functioning as actual cassation, which led the constitutional court to very summit of constitutional system.[20]

The Supreme Court of Korea opposes the Constitutional Court of Korea on both binding power of 'conditionally unconstitutional' ruling and possibility of constitutional complaint over judgment of ordinary court, since it could turn equivalent status of Supreme Court against the Constitutional Court into substantially inferior status as German federal ordinary courts against German federal constitutional court. However, whether the Constitutional Court of Korea can exercise power of suggesting binding interpretation not only on the Constitution but also on statute (by conditional ruling), or can review unconstitutionality of ordinary court judgment (by constitution complaint procedure) still remains unsolved, since the Constitution and even associated statutes never clarify how this struggle should be settled.[21]

Issues and Criticism
  • South Korea's judiciary is often criticized for being overly lenient toward criminals. For example, in the Cho Doo-soon Case involving the brutal rape of an eight-year old girl, the 56 year old male rapist was sentenced to only 12 years in prison.
  • According to OECD study in 2013 and 2015, though South Korean ordinary courts achieved top-tier among OECD countries,[22] South Korean's confidence on judicial system is dropping rapidly from 2010's.[23] It is notable that confidence level on judicial branch is lower than executive branches of South Korean government.
  • Judges in lower ordinary courts of South Korea are exposed to authoritative influence of Supreme Court Chief Justice and the President of South Korea.[4] For example, all lower ordinary court Judges are usually transferred to different courts all around South Korea per about two years by order of Chief Justice, by article 44 of Court Organization Act.[9] This strong influence of Chief Justice on each of lower ordinary court Judges later provoked pressure to reform courts.[24]

See also

Notes and References
  1. "CONSTITUTION OF THE REPUBLIC OF KOREA". Korea Legislation Research Institute. Retrieved 2022-02-26.
  2. "South Korea, The National Law Review". Retrieved 2022-04-15.
  3. "CONSTITUTIONAL COURT ACT". Korea Legislation Research Institute. Retrieved 2022-02-26.
  4. "Constitutional history of Republic of Korea, ConstitutionNet". Retrieved 2022-04-15.
  5. "West, James M., and Dae-Kyu Yoon. "The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex?" The American Journal of Comparative Law, vol. 40, no. 1, 1992, pp. 76-77". JSTOR 840686. Retrieved 2022-04-05.
  6. "천경훈. (2017). 변호사시험이 법학전문대학원의 교육에 미치는 영향. 상사법연구, 36(1), 233-238" (in Korean). Retrieved 2022-05-10.
  7. "Constitutional Court decision, 90Hun-Ba25, June 26, 1992" (in Korean). Ministry of Government Legislation, Korean Law Information Center. Retrieved 2022-05-20.
  8. "박선영. (2015). 헌법 제27조 제1항의 '재판을 받을 권리'와 심급제에 관한 小考 -EU 국가의 상고심 기능과 역할을 중심으로-. 유럽헌법연구, 18, 225-229" (in Korean). Retrieved 2022-02-23.
  9. "COURT ORGANIZATION ACT". Korea Legislation Research Institute. Retrieved 2022-02-23.
  10. "KIPO english website". Korean Intellectual Property Office. Retrieved 2022-02-26.
  11. "Jurisdiction of Patent court of Korea". Patent Court of Korea. Retrieved 2022-02-26.
  12. "Organizational Chart of Supreme Court of Korea". SUPREME COURT OF KOREA. Retrieved 2022-02-28.
  13. However, since this reform was too sudden for whole ordinary courts in South Korea, required experience for Judge before year 2029 is 3 to 7 years according to addenda of amended Court Organization Act in year 2011 and 2021. See "Judges qualifications". Supreme Court of Korea. Retrieved 2019-01-01. updated in 2019 and amended addenda of Court Organization Act in 2021-12-21
  14. "MILITARY COURT ACT". Korea Legislation Research Institute. Retrieved 2022-02-26.
  15. Shin, Hyonhee (2021-06-10). "S.Korea pushes for military law change after soldier's death over sexual abuse". Reuters. Retrieved 2022-05-01.
  16. "김정수. (2021). 군 사법제도 개혁과 헌법적 의미에 대한 소고. 연세법학, 38, 71-102" (in Korean). Retrieved 2022-05-01.
  17. "Jurisdiction of Constitutional Court of Korea". Constitutional Court of Korea. Retrieved 2022-02-26.
  18. "Organization of Constitutional Court". Constitutional Court of Korea. Retrieved 2022-02-26.
  19. "96Hun-Ma172 (Decision date : Dec 24, 1997)". Constitutional Court of Korea. Retrieved 2022-04-07.
  20. See Lech Garlicki, Constitutional courts versus supreme courts, International Journal of Constitutional Law, Volume 5, Issue 1, January 2007, Pages 44–68. Available at "International Journal of Constitutional Law". Oxford Academic. Retrieved 2022-04-07.
  21. See Jibong Lim, Korean Constitutional Court Standing at the Crossroads: Focusing on Real Cases and Variational Types of Decisions, 24 Loy. L.A. Int'l & Comp. L. Rev. 327 (2002). Available at "Loyola of Los Angeles International and Comparative Law Review". Loyola Law School. Retrieved 2022-02-26.
  22. "Judicial performance and its determinants: a cross-country perspective". OECD. Retrieved 2022-02-26.
  23. "Trust in government in Korea: A puzzle". OECD. Retrieved 2022-02-26.
  24. "An influence-peddling scandal ensnares South Korea's top court". The Economist. 2019-01-24. Retrieved 2022-04-07.
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