Constitutional Court of Korea

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

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

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

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

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 no Justices who attempted to renew their term by reappointment,[11] because renewing attempt can harm judicial independence of the Constitutional Court. During the term, according to article 112(1) and 112(2) of the Constitution, Justices shall not be expelled from office unless by impeachment or a sentence of imprisonment, and they shall not join any political party, nor shall participate in political activities to protect political neutrality of the Court.

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

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

Rapporteur Judges are appointed by President of the Court with consent of Council of Justices, under article 16(4) and 19(3) of the Act, and serve for renewable ten-year terms, which is same tenure system as lower ordinary court Judges (Korean: 판사) in South Korea. It is noticeable that Rapporteur Judges serve longer than Justices in Constitutional Court, and paid as same as lower ordinary court Judges, since these professional assitants 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.[15]

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.[19]

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

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

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

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

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

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

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

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

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

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.