CLOSING REMARKS: FURTHER CONSTITUTIONAL RAMIFICATIONS OF THE LEGISLATIVE FUNCTION OF THE CONSTITUTIONALITY REVIEW BY THE CONSTITUTIONAL COURT IN THE REPUBLIC OF KOREA

As discussed above, the constitutional adjudication of constitutionality review over the statute conducted by the Constitutional Court of the Republic of Korea should and may by its nature be justified in terms of democratic as well as constitutional legitimacy.

At the same time, as far as the Constitution adopts the system of constitu­tional adjudication by the independent constitutional institution of the Constitutional Court, the interpretation of the Constitution by the Constitutional Court is final with its binding force, and the interpretation of the Constitution by the National Assembly involved during the legislative process may not preempt that performed by the Constitutional Court in the constitu­tional adjudication. Yet, the question of whether or not or just how far the Constitutional Court’s decision of unconstitutionality binds the legislative power of the National Assembly remains an open question.^[386] At least, should the Constitutional Court lack democratic legitimacy, the notion of constitu­tionalism standing alone would not be persuasive as the ground for justifying the priority of the Constitutional Court’s interpretation of the Constitution over that of the National Assembly with strong democratic legitimacy, in light of the principles of democracy or sovereignty of the people.

Considering such legislative function of the constitutionality review conducted by the Constitutional Court and the relationship between the National Assembly and the Constitutional Court involved in it, it becomes an urgent request to secure a normative ground for democratic legitimacy of the constitutional adjudication. At the same time, however, it is important to note that such a nature from a functionalist perspective is not a free pass to politi­cize the constitutional adjudication by de-judicializing the constitutional adju­dication. The legislative nature and function of the constitutionality review over the statute conducted by the independent constitutional institution of the Constitutional Court should not be overly emphasized to the extent that it enshrines the Constitutional Court as an overarching legislator, thereby stifling democracy by replacing the democratically constituted National Assembly with the Constitutional Court. More than anything else, it should be noted that even when the constitutional adjudication reviewing the constitutionality of the statute assumes the normatively legislative function, the constitutional adjudication still primarily serves the judicial function by way of adjudicative forum.

Under the traditional notion of a government ruled by the law prior to the advent of the constitutional law as the highest law of the nation, such a notion of a law-governed nation was based upon the superiority of the enacted law or the legislative body over the executive power, and the lawmaking power of the legislature played the most significant part in the adequate and permissible act of the government. As a corollary, the execution of and the adjudication under such enacted laws were bound by the legislation within such lawmaking power of the legislature.

Under the notion of constitutional state, the Constitutional Court or its equivalent institution thereby binds and controls the exercise of the legislative power by the legislature. The Constitutional Court, as a result, indirectly assumes at least part of the substantive role of the legislator, through adjudi­cation over the constitutionality of the statute enacted by the legislative body. Yet, again, this does not mean that the Constitutional Court may or should be substituted for the legislature in the name of a constitutional state. Constitutional law even in a constitutional state remains to function as the norm that sets the boundaries and the limits of the governmental powers and ordains and declares the fundamental rights of the people. Constitutional law as such remains to be incomplete, abstract and open and is subject to the construction, thereby enabling the community it binds to adapt itself to the changing conditions and circumstances, while establishing a more specific legal order under the mandates of the constitution is primarily left for the legis­lature that is endowed with democratic legitimacy. This assigns the Constitutional Court and the National Assembly unique functions and arenas respectively, also in the mechanism of constitutional adjudication as a whole.

Notwithstanding the legislative nature of the constitutional adjudication over the constitutionality of the statute, the National Assembly is to be guar­anteed therefore, to retain and exercise the legislative formative power, and the control over legislation through the constitutional adjudication should be restricted within the limits of the legislative formative power of the National Assembly. Here, it should also be noted that the legislative formative power of the legislature and its limits are not set by the decisions of the Constitutional Court, but, instead, are grounded upon and determined by the nature of the matter that has become the object of the legislation, within the purview of the constitutional law.^[387] Thus, despite the legislative nature of the constitutional adjudication, its limits are clear, and such delineation to a certain extent imbues life into the notions of people’s sovereignty and democracy, and also enables the mechanism of democratic legitimacy of the acts of the nation to properly function. The relationship between the constitutional adjudication by the Constitutional Court and the legislative power of the National Assembly understood as such may serve consistently and effectively when faced with more specific challenges pertaining to, for example: the extent of the binding power of the unconstitutionality decision of the Constitutional Court over the National Assembly in its legislation on identical or relevant matters; the appro­priate balance between the independent constitutional institutions or govern­mental branches including the matter of judicial activism and self-restraint; the permissibility of special forms of decisions in the constitutionality review by the Constitutional Court over the statute such as limited constitutionality or limited unconstitutionality decisions; and the extent of their binding force over the National Assembly’s legislation.

Ultimately, the proper role and institutionally permitted powers of the National Assembly and the Constitutional Court in their functionally legisla­tive role should be understood both as and in the context of the process in which the Constitution adjusts and harmonizes society’s diverse and multifac­eted interests, perspectives and positions.^[388] Constitutionalism that permits, adopts and implements a pluralist allocation of powers for legislation seeks to represent diverse interests, wishes and positions through legislation. The concern of the Constitution lies in the possibility of extracting an agreement out of such diversified interests, wishes and positions, which may be deemed to be legitimate and therefore persuasive even by the dissenters. In this process, the primary role of the National Assembly is to take initiatives in recognizing diverse political segments and powers within the community from a pluralist perspective and to determine whether to set for procedures by law to adjust their interests, wishes and positions, whereas the primary role of the Constitutional Court is to review and assess whether the outcome of such adjustment by the legislature is justified by and under the Constitution.^[389] Thus, ultimately, discussions over the legislative function of the constitutional adju­dication and the relationship between the constitutional institutions engaged in this process should be analyzed in the context of the implementation of the Constitution. Among different characteristics and functions of the constitu­tional law, its nature as the outcome of political compromises is implemented by and through the National Assembly as the legislature, while its nature as regulatory norms is implemented by and through the constitutional adjudica­tion conducted by the Constitutional Court, under the structural design of the Constitution of the Republic of Korea. What is the basic premise and the ulti­mate goal at the same time is that the National Assembly and the Constitutional Court are both bound by the constitutional law of the Republic of Korea.

Constitutional Court Decisions, 19 Law and Society 213 (2000) (available only in Korean).

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