Legal institutions

4.1 Law-making authority

In principle, the National Assembly is the sole law-making body of the state. The National Assembly consists of299 legislators who serve for a four-year term, 243

42 For more information see the Supreme Court Library website:.

Bills are submitted through two channels. To begin with, 10 or more legis­lators can introduce a Bill. The Government also can submit a Bill. In terms of volume, the former is the more common way of initiating legislation. In the 17th Assembly (2004-08), a total of 7489 Bills were submitted.^[434] Of these 6387 were from legislators whereas 1102 were from the Government. In the 16th Assembly (2000-04), a total of 2507 Bills were submitted. Of these 1912 were from leg­islators and 595 were from the Government. However, the pass rate of Bills is much higher for Government-led Bills. During the 17th Assembly, 51.0 per cent of the Bills submitted by the Government passed as opposed to only 21.1 per cent of the Bills by legislators. In the 16th Assembly, the gap was even wider; 72.4 per cent versus 26.8 per cent.

When a Bill is submitted either from legislators or the Government, it is referred to a relevant standing committee for further examination. Then the standing committee presents it via the Legislative and Judiciary Committee^[435] to the plenary session^[436] for a vote. If the Bill passes the National Assembly with a majority vote, it is sent to the President of the Republic for signature and promulgation. The President must promulgate the Bill within 15 days upon receiving it from the National Assembly. Unless otherwise specified, the Bill takes effect 20 days after its promulgation. However, the President reserves veto power.^[437] The President exercises this right by returning the Bill to the National Assembly with a written explanation of the veto and a request for reconsideration. However, the President is not allowed to request the National Assembly to reconsider the Bill in part, or with proposed amendments. If the National Assembly again passes the Bill with the attendance of more than one half of the total members, and with a concurrent vote of two-thirds or more of the members present, it becomes an Act.

4.2 Adjudicative authority

The Supreme Court and the lower courts^[438]

Article 101 of the Constitution endows courts with the power to adjudicate all legal disputes. To perform this mission, the Court OrganizationAct sets forth the basic structure of the court system, providing for a three-tier system.

At the first level is the District Court. Currently there are 13 District Courts nationwide, each of which represents a geographical area. District Courts are the courts of first instance, exercising general original jurisdiction. Branch Courts, Branch Courts of the Family Court and Municipal Courts are established under the District Courts.

At the appellate level is the High Court. The High Court serves as the court of appeal. Five High Courts are located in major cities - Seoul, Busan, Daegu, Gwangju and Daejon. However, it should be noted that High Courts are not the only appellate courts under the Korean system. High Courts hear all appeals from judgments issued by a panel of three judges, and appeals from judgments by a single judge in a civil proceeding when the amount in dispute exceeds 50 million Korean won.^[439] Appeals from otherjudgments that have been rendered by a single judge will be heard by an appellate panel in District Courts. In this sense, appellate jurisdiction is divided among High Courts and District Courts, according to the nature of the case. Another court that is positioned at the same level is the Patent Court. Its major function is to deal with appeals against decisions of the Korean Intellectual Property Office (KIPO) with regard to intellectual property-related cases (patent, utility model, design and trademarks). Copyright is not handled by the KIPO.

At the highest level is the Supreme Court. It serves as the court of last resort. The Supreme Court is comprised of 14 Justices, including the Chief Justice. One of them serves as the Minister of National CourtAdministration, the administrative body of the Supreme Court. The Supreme Court Justices are recommended by the Chief Justice, appointed by the President and approved by the National Assembly. The Chief Justice is also appointed by the President and approved by the National Assembly. They all serve a six-year term. The Supreme Court hears appeals from the High Courts and the Patent Court. It also hears appeals from District Courts and Family Courts when they adjudicate as courts of appeal. The grounds for appeal to the Supreme Court are limited by law.^[440] If the appeal does not contain the cause enumerated by law, the Court dismisses the appeal without further examining the case.

Role of the court

The role of the court in Korea has been significant in the several decades since the modern legal system was established. Without sufficient prior experience courts had to apply newly enacted legislation in a way that met the needs of the country and resonated with the changing circumstances. Attracted to this responsibility, the brightest legal minds of the nation thronged to the judiciary and contributed, by dedicating their time and energy, to building the new framework.

The civil law tradition, as opposed to the common law tradition, sees the court as interpreting laws made by the legislative branch, with little discretion. In this sense, courts are law-applying rather than law-making institutions. However, the civil law/common law divide is not as significant in practice as in theory. Korean courts do exercise de facto law-making power. Courts take the broadly worded statutory language and then develop a set of rules on the basis of the policy underlying the language. As courts incrementally create, modify, refine and expand these rules over a multitude of cases, these court-made rules attain the de facto status of law. This �gap-filling’ function of the courts is a theme throughout Korea’s judicial history.

Take, for instance, the case where the Supreme Court ruled that a female- to-male transsexual should be allowed to change the gender listed in his family registry from female to male.^[441] The Family Registry Law^[442] did not provide any procedure by which gender could be changed for transsexuals.

The Constitutional Court

The Constitutional Court was established in September 1988 in the wake of the ninth amendment of the Constitution. It is an independent constitutional institu­tion, with jurisdiction over following areas: determining the constitutionality of a statute; ruling on disputes over competence between and among governmental entities; adjudicating constitutional complaints filed by a private party; decid­ing on impeachment charges brought by the National Assembly; and making judgments on the dissolution of political parties.

The composition of the Constitutional Court Justices is quite unique. To begin with, nine Justices are appointed by the President. However, three are elected by the National Assembly and another three are designated by the Chief Justice of the Supreme Court. The President is bound to appoint these six Justices who have either been elected or designated by other institutions.

The Constitutional Court has been highly successful in positioning itself as the final adjudicator of constitutional disputes. From its foundation in 1988 until the end of 2007, 15 716 cases have been filed and 14 789 have been decided. Of the latter, 773 cases have been decided �unconstitutional’.^[443] This flood of filing was made possible through a peculiar system of �constitutional complaint’ which can be filed by any individual citizen.

The first decision concerned the impeachment of the then President Roh Moo-hyun.^[445] The National Assembly passed an impeachment resolution against President Roh on multiple grounds including the violation of political neutrality, corruption and government maladministration. The claim was rejected by the Constitutional Court. Although the Court confirmed the violation of political neutrality by the President, it reasoned that it was not grave enough to justify the removal of the President from his post.

After this favourable outcome to the President and the Government, the Con­stitutional Court frustrated the ambitious governmental plan to relocate the capital of Korea. At issue was the Special Act on the Establishment of the New Administrative Capital, a Bill that contained a plan to construct a new admin­istrative capital in Chungcheong Province in central Korea. This Bill was held unconstitutional.⁵8 The complainants in this case were Korean citizens domi­ciled across the nation, who filed the constitutional complaint in this case on grounds that the Bill was unconstitutional in its entirety as it was an attempt to relocate the nation's capital without revision of the Constitution, and that the Bill violated the right to vote through a referendum⁵⁹ and the rights of taxpayers. The Court, however, invoked unexpected logic in holding the Bill unconstitutional. The majority of the Justices ruled that there is a customary constitutional law that designates Seoul as the capital of Korea although there is no explicit provi­sion that states so. This norm, according to the majority, has been formed over a period of over 600 years since the Joseon Dynasty and has achieved national consensus as a part of constitutional custom even prior to the introduction of the written Constitution. Thus, it would be unconstitutional to change the capital without going through the constitutional amendment procedure under art 130 of the Constitution, which requires at least two-thirds majority in the National Assembly and a national referendum vote in favour of the proposed amendment.

These two decisions show the tension between the Constitutional Court and other branches of government, and at the same time demonstrate the over­whelming impact of the Constitutional Court's rulings under Korea's current constitutional scheme.

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