Supreme Court of South Korea

Since the current Constitution of South Korea[7] never states about exact number of 'Supreme Court Justices' (Korean: 대법관), exact number of the Justices are stipulated by statute on organization of ordinary courts called 'Court Organization Act' (Korean: 법원조직법).[8] Currently in year 2022, the number of Justices are 14 by article 4(2) of the Court Organization Act. All of Supreme Court Justices are appointed by the President of South Korea with consent of the National Assembly, according to article 104(2) of the Constitution. It is notifiable that article 104(2) of the Constitution also empowers Chief Justice of the Supreme Court a power to recommend candidates for Supreme Court Justice. To be appointed as Supreme Court Justice, one should be at least 45 years old, qualified as attorney at law and also should have more than 20 years of career in legal practice or academia, by article 42(1) of the Act.

Article 104(2) of the Constitution requires consent of 'Council of Supreme Court Justices' (Korean: 대법관회의) for appointment of lower ordinary courts Judges (Korean: 판사) by Chief Justice of the Supreme Court. The council is composed of all Supreme Court Justices (including the Chief Justice), and can make decision by simple majority among quorum of two-thirds of all Supreme Court Justices, according to article 16(1), (2) and (3) of the Court Organization Act. When the vote ties, the Chief Justice has casting vote as permanent presiding chair at the council. Also empowered by article 17 of the Act, the council has also other supervisory functions for the Chief Justice's power of court administration, such as promulgation of interior procedural rules, selection of judicial precedents for publication and fiscal planning for all ordinary courts including the Supreme Court itself.

By article 104(1) of the Constitution, the Chief Justice of the Supreme Court is appointed by President of South Korea with consent of the National Assembly. Career and age requirement for the Supreme Court Chief Justice is as same as that of other associate Supreme Court Justices under article 42(1) of the Court Organization Act.

The Chief Justice's role is more than a presiding member of Grand bench (Korean: 전원합의체) composed of more than two-thirds of all fourteen Justices. The Chief nominates candidate for three of nine Constitutional Court Justices under article 111(3) of Constitution, and serves as chair at Council of Supreme Court Justices. Also, the Chief appoints one of thirteen Supreme Court Justices as Minister of National Court Administration (Korean: 법원행정처), and appoints every ordinary lower court Judges with consent of Council of Supreme Court Justices.

Article 105(1), (2) and (4) of the Constitution and article 45(4) of the Court Organization Act provides the term of associate Justices as renewable six-year up to mandatory retirement age of 70. However, there's no Justices who attempted to renew their term by reappointment in current Sixth Republic,[9] because renewing attempt can harm judicial independence of the Court. During the term, according to article 106(2) of the Constitution, Justices shall not be expelled from office unless by impeachment or a sentence of imprisonment. Also, participating in any political party or activities are prohibited by article 43(1), 49 of the Act.

A noteworthy point of South Korean Supreme Court Justices is they can be retired from office against their will while in term, when they are regarded as having unbearable mental or physical impairment. This 'order' of retirement by President of South Korea due to impairment of Supreme Court Justice (Korean: 심신장해로 인한 퇴직명령) is cleary stipulated in article 106(2) of the Constitution and article 47 of the Act. Other lower ordinary court Judges are can also be ordered to retire due to impairment by Supreme Court Chief Justice. This is retirement order system is one of major difference between Supreme Court Justice and Constitutional Court Justice; the latter cannot be ordered to retire because of impairment, as there are no statute supporting such retirement order system in the Constitutional Court Act.[10]

Judges in Research division of the Supreme Court (Korean: 재판연구관, formerly known as 'Research Judges' or 'Judicial Researchers') are officials supporting Supreme Court Justices. By article 24(3) of the Act, there are two types of Research Judges; One is originally lower ordinary court Judges seconded to the Supreme Court by order of Chief Justice, another is experts who are not lower ordinary court Judges. The latter is called 'Judicial Researchers' and appointed for maximum term of 3 years, while former is called 'Research Judges' and usually seconded to work in the Supreme Court for 1 to 2 years. This system is influenced by German 'Research Associates'[11] (German: Wissenschaftlichen Mitarbeiter) who are originally lower court judges seconded to federal courts up to five years, working as judicial assistant for judges in highest courts. Though working term for these research staffs are short, they are core staffs who operates whole procedure of the Court, since there are too many of cases appealed to the Court. The number of Research Judges are currently around 100,[12] while number of Judicial Researchers are around 30.[13]

Established as apparatus of the Supreme Court under article 67 of the Court Organization Act, the 'National Court Administration' (NCA, Korean: 법원행정처) manages all of matters on administration of all ordinary courts (including the Supreme Court itself) in South Korea. The head of the NCA is called 'Minister of NCA' (Korean: 법원행정처장) and solely appointed by the Chief Justice among associate Supreme Court Justices. As other Supreme Court Justices, the Minister is treated as same level as other Ministers at State Council in executive branch of South Korean government. Also the Vice Minister of NCA is appointed by the Chief Justice usually from senior lower court Judges and treated as same level as other Vice-Ministers. The NCA follows direction of the Chief Justice and implements decisions from the Council of Supreme Court Justices. Its main role includes assisting the Chief Justice's power on human resource issues of lower ordinary court Judges, planning fiscal budget and expenditure issues for all ordinary courts, and internal inspection for anti-corruption ethics.[14]

The 'Judicial Research and Training Institute' (JRTI, Korean: 사법연수원) is currently an institution for training and reeducating lower ordinary court Judges by article 72 of the Court Organization Act. However, it was originally an kind of nation-wide 2-year law school supported by South Korean government before South Korea adopted American styled 3-year law school system in year 2008. Before South Korea adopted American law school system (Korean: 법학전문대학원), South Korea trained its legal professionals mainly by JRTI. Another route was recruitment by South Korean Armed Forces as 'Judge Advocates' (Korean: 군법무관).

The JRTI was basically an South Korean conversion of 'Legal Research and Training Institute' (Japanese: 司法研修所) in Japan, which was an institution for training judges, prosecutors and attorneys-at-laws at the same time. 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. Graduated trainee with superior records usually choose to become Judges and Prosecutors, while trainees with lower records had to choose working as lawyers in fields. This partially continued civil law tradition of regarding prosecutors as de facto part of judiciary, like French National School for the Judiciary, is reflected in organization of JRTI, as the deputy director (or vice-president) of the JRTI is appointed among Prosecutors by article 74(1) of the Act. Yet after American styled 3-year law school system was adopted in South Korea, the JRTI lost its status as only professional school for law in South Korea, and turned into internal education institute for newly appointed Judges and Law clerks. Some of senior Judges are also retrained in JRTI for technical matters.[15] Also, currently all of training functions for Prosecutors are transferred to 'Institute of Justice' (Korean: 법무연수원) at Ministry of Justice.[16]

Established by article 76-2 of the Court Organization Act in year 2014, the 'Judicial Policy Research Institute' (JPRI, Korean: 사법정책연구원) is apparatus of the Supreme Court for research on policy issues concerning judicial system of South Korea. It also has function for educating public on elementary issues on function of ordinary courts. Research fellows and Researchers at the Institute are recruited mainly from lower ordinary courts Judges, yet significant number of Researchers are recruited from outside of ordinary courts usually with PhD degrees, by article 76-4 of the Act. The JPRI is currently located in Goyang, Gyeonggi.[17]

In the first phase, the 'Petty Bench' (Korean: 소부) composed of four Supreme Court Justices reviews how appeal should be handled. If the four Justices in the same Petty Bench makes decision unanimously, the case is decided in the Petty Bench. However, when the Petty Bench cannot make unanimous decision by itself, or when the Petty Bench decides such case should be handled in en banc (for example, if it is necessary to change precedent of the Supreme Court, or if constitutional review at sub-statutory level is important issue of the case, etc.), the Grand Bench takes the case. Since there is three petty benches in the Court, only twelve out of fourteen Supreme Court Justices are participating in the first phase of the procedure. Other two Supreme Court Justices who are not belonged to any Petty Bench, are the Chief Justice and the Minister of National Court Administration, both having administrative role inside the Court. In the second phase, the 'Grand Bench' (Korean: 전원합의체) composed of more than two-thirds of all Supreme Court Justices reviews the case came up from the Petty Bench. It makes decision by simple majority. However, if there's no majority opinion in the Bench, opinion of the Court is decided according to article 66 of the Act.[22]

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.[23]

Current cases in the Supreme 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 matches with specific jurisdiction (for example, 'Da' is for private law cases, while 'Du' is for criminal law cases) of the Court. The last serial number is given in the order of case filing of each year.[24]