Constitutional Court of Korea

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.

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.

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.

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.

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.

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 (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]

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.

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]

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]

According to Article 111(1), 1. of the Constitution, the Constitutional Court may review the constitutionality of statutes at the request of ordinary courts—a power referred to as judicial review (Korean: 사법심사) or officially Adjudication on the constitutionality of statutes (Korean: 위헌법률심판) in Chapter 4, Section 1 of the Constitutional Court Act. In a legal dispute, if the court's decision depends on the constitutionality of laws relevant to the case, either party may request the court to refer the matter to the Constitutional Court for review. However, the court has discretion on whether to follow through with such a referral. If the court decides not to refer the matter, the aggrieved party can file a "constitutional complaint" directly with the Constitutional Court. The procedural hurdles involved in requesting adjudication on the constitutionality of statutes imply that only parties directly involved in an ongoing legal case are eligible to request a referral from the court. This means that abstract or potential injuries are not eligible for this legal resource. In other words, a party must have a concrete and specific interest in the outcome of the case to request a referral to the Constitutional Court.

Article 41(5) of the Constitutional Court Act establishes that once an ordinary court has requested the Constitutional Court to adjudicate on the constitutionality of statutes, no superior court, including the Supreme Court of Korea, may intervene. This restriction on the powers of the Supreme Court was motivated by its historical passivity in confronting other branches of government during periods of authoritarian rule.

However, this clause was abused by President Park Chung Hee under the Yushin Constitution. He refused to re-appoint Supreme Court justices who challenged his authority, effectively preventing the ordinary courts from making any formal requests for constitutional review. This event laid bare the vulnerabilities of making constitutional review contingent upon a court's request.

Decriminalizing abortion in South Korea (2017Hun-Ba127) in 2019 is one of the landmark decisions on constitutional complaints under Article 68(2) of the Constitutional Court Act

As a result, the 1987 tenth constitutional amendment introduced another avenue for an interested party to bypass the court and directly ask the Constitutional Court to intervene in constitutional review. This alternative route, called Constitutional Complaint (Korean: 헌법소원심판), is defined in Article 68(2) of the Constitutional Court Act.[25]

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, if the President, Prime Minister, or other state council members violate the Constitution or other laws of official duty, the National Assembly can file an impeachment motion with at least one third of the members of the National Assembly. In order to pass, the motion must receive the support of a supermajority if it concerns the President, and a simple majority for any other office. Once the impeachment motion passes the National Assembly, the Constitutional Court adjudicates the impeachment, and until the Constitutional Court reaches a decision, the person against whom the impeachment motion was lodged is suspended from exercising his or her power.

Neither the Constitution nor the Constitutional Court Act lays out concrete criteria to be considered in an impeachment case. Therefore, the Constitutional Court's decisions play an important role in establishing standards of review for impeachment cases. There have been two presidential impeachment cases: the failed impeachment of Roh Moo-hyun of 2004 and the successful impeachment of Park Geun-hye of 2017. In the ruling on the impeachment of President Roh Moo-hyun, the Court declared that a 'grave (Korean: 중대한)' violation of the law is required for the impeachment of a President. However, in the impeachment case of President Park Geun-hye, the Constitutional Court held that a violation of the Constitution is sufficient cause for impeachment, even if there is no grave violation of the law or statutes.[26]

Under the Constitution of South Korea, the government has the right to request the dissolution of a political party if its objectives or activities are deemed to be in opposition to the principles of the liberal democratic basic order (German: Freiheitliche demokratische Grundordnung; Korean: 민주적 기본질서), and such requests are adjudicated by the Constitutional Court. The party-dissolution provision was influenced by its German equivalent, called 'Party Ban' (German: Parteiverbot), designed to prevent the recurrence of events like the rise of the Nazis.[27] While the clear provision for dissolving a political party serves to prevent anti-democratic factions from destabilizing society, it also acts as a safeguard against attempts to dissolve a party as a means of suppressing dissent and stifling free expression since a dictator cannot dissolve at will a political party challenging his or her authority.

The Constitutional Court rarely accepts dissolution petitions, and even less often rules in favor of dissolving a political party. As of April 2023, the Unified Progressive Party (UPP, Korean: 통합진보당) is the only political party dissolved through the party-dissolution provision.[28][29][30]

The Constitution of South Korea empowers the Constitutional Court to adjudicate competence disputes (Korean: 권한쟁의심판), which is derived from the German 'Organs Dispute' (German: Organstreit).[31] Competence is legal jargon defined as the "legal authority to deal with a particular matter," and therefore, competence disputes are legal cases between state agencies (Korean: 국가기관) or local governments (Korean: 지방자치단체) asking the Constitutional Court to adjudicate which party does or does not have "competence." In some instances, two separate agencies may have overlapping powers, which are defined in the relevant statutes that grant those powers. As a result, it may become necessary to distinctly establish the agency responsible for a particular matter. In some other cases, the existence of competence itself can be disputed. For example, the central government in Seoul may delegate certain government projects to local governments, which uses the labor and resources of the local government. Local governments may lodge a competence-dispute lawsuit with the Constitutional Court to challenge the constitutionality of the delegation, citing their lack of constitutional competence to undertake the delegated tasks.

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.

The relationship between the Constitutional Court of Korea and the Supreme Court of Korea is a hotly-debated topic among Korean jurists.[35][36][37][38] 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 co-equal 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 in which 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. That 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 that 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, which has brought the nation on the verge of a constitutional crisis.

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