OTHER FORA OF JUDICIAL REVIEW
1. Judicial Review at the Constitutional Court
Since 1988, the present Constitutional Court has performed effective and substantial constitutional review. It has exclusive power to review statutes enacted by Congress as well as power to review the execution of public power through a �constitutional complaint’ procedure.
As far as administrative power is concerned, â€?constitutional complaint’ is designed as a safety net or suppleÂmentary remedy procedure that is allowed only when administrative litigation is not available. But the Constitutional Court has been using this supplemenÂtary power quite vigorously so that the â€?constitutional complaint’ has become a very popular redress for grievances caused by all kinds of public power. The active role of the Constitutional Court has affected the attitude of courts toward judicial review. In 2004, the Supreme Court special committee charged with amending the Administrative Litigation Act held a public hearing on its own amendment proposal. The proposal included far-reaching and even radiÂcal changes that could lead to a very different model of judicial review. Specifically, it prescribed clearly that administrative rulemaking and acts with only factual effect should also be subject to appeal litigation. And it reformed the provision for standing from â€?statutory interest’ to â€?legitimate legal interÂest.’ Many observers agreed that the motivation behind such a daring reform was organizational competition between the Constitutional Court and general courts having jurisdiction over administrative litigation.[457]According to section 68 of the Constitutional Court Act, anyone whose fundamental rights guaranteed by the Constitution have been infringed through the exercise or non-exercise of governmental powers (except the judgÂments of the ordinary courts) may file a constitutional complaint with the Constitutional Court, only after, however, exhausting all the remedial proceÂdures which are available under other statutes.
The â€?dispositions’ subject to administrative litigation also constitute â€?the exercise or non-exercise of governmental powers.’ Due to the rule of exhaustion of other remedies and the exclusion of courts’ judgments from the jurisdiction of constitutional complaint, administrative acts which fall into the category of â€?disposition’ cannot be reviewed pursuant to the constitutional complaint procedures while administrative acts which do not fall into the category of â€?disposition’ can be reviewed via constitutional complaint. The latter group of acts includes adminÂistrative acts which have no legal effect on the rights or duties of individuals except factual effects (for example, administrative guidance) or administrative rule-making which has only general and abstract effects. Therefore, the judiÂcial review system of administrative acts of Korea is a kind of dual system of administrative litigation and constitutional complaints. And whether the disputed acts fall under the â€?disposition’ language of the Act is the key quesÂtion in choosing the correct forum.There are gray areas where it is difficult to decide whether an administraÂtive act is a â€?disposition’ or not. The issue is ultimately decided by courts’ interpretation of the concept of â€?disposition.’ While courts interpreted â€?dispoÂsition’ narrowly so as to deny appeal action for administrative rulemaking and various factual acts in spite of actual grievances on the part of private citizens, the Constitutional Court began filling this gap. If administrative rulemaking (including presidential decrees, departmental decrees, ordinances of local governments, etc.) directly infringes upon an individual’s fundamental or basic rights, the individual may file a Constitutional Complaint against the rule itself. The Constitutional Court reasoned that it was not a violation of the rule of exhaustion of other remedies because the courts have denied appeal litigaÂtion for such factual acts or rule-makings.
The Supreme Court argued against this, stating that the Constitution vests the Supreme Court with exclusive power to â€?make a final review of the constitutionality or legality of adminisÂtrative decrees, regulations or actions.’ The Constitutional Court responded that the jurisdiction of the courts is limited to collateral issues.2. Judicial Review in Civil or Criminal Litigation: Prior Question
According to section 11 of the Act, in cases where the validity or the existence of an administrative disposition represents a prior question in civil litigation, the civil court can try and decide the question. In such a case, the civil court can be said to review the legality of the administrative action.[458] Therefore, when a disposition is seriously and evidently illegal, a civil court or a crimiÂnal court can rule it to be null and void. This seems to be a natural conclusion of the proposition that serious and evident illegality makes the disposition null from the beginning. If the illegality is evident to every person, a civil or crimÂinal judge can also declare it so. Then, does a civil court have the power to invalidate a disposition on the grounds that it is illegal just like an administraÂtive court does in a rescissory litigation? Courts have held that civil courts can only confirm the disposition invalid when the illegality is so serious and evident that the disposition is null. If a disposition is simply illegal, only courts having jurisdiction over administrative litigation can invalidate it. Though the Act is silent on the issue of criminal courts, courts have held the same with respect to them.
3. Judicial Review in Tort Litigation Against the State
Another occasion for judicial review exists when a person seeks damage for the harm caused by a public officer’s wrongdoing in the course of their offiÂcial work. Article 29(1) of the Constitution makes it clear that a person is entiÂtled to be compensated by the state or public organizations for damages caused by an unlawful act committed by a public official.
The Constitution also prescribes that in spite of the State’s liability, the public official (wrongÂdoer) is not immune from his own liabilities.[459] The State Tort Liability Act prescribes that the state can seek compensation against the wrongdoer public officer only when his or her intention or gross negligence is proven. But the Act is silent on the issue of whether a complainant can sue the public officers or not. The Supreme Court’s majority opinion on this issue was that a complainant can sue the public officers directly only when he or she was intentional or grossly negligent, similar to the standard which applies when the state may seek compensation against the public officer.There is no statutory provision concerningjurisdiction over the state’s liability action. The courts have maintained a longstanding practice that a civil court, not an administrative court, has jurisdiction over such actions just as if they were tort actions among private persons. Many administrative law scholÂars have maintained Party Litigation at an administrative court would be the proper form of action and the proper forum for the tort action against the state. The 2004 Supreme Court amendment proposal prescribed that tort action against the state has to be undertaken as a party litigation at administrative court.
At present, the civil courts presiding over such tort actions must decide if the public officer’s act is illegal or not. The scope of â€?official acts’ which may trigger the State’s liability is much broader than that of â€?administrative dispoÂsition.’ The â€?wrongfulness’ at the tort action is judged on different standards from those for the â€?illegality’ at the appeal litigation. The courts consider the infringing result of an official act as well as the violation of a specific legal rule or principle. There are several decisions where civil courts at the tort litiÂgation did not find any wrongful official act even though administrative courts invalidated an official decision as illegal.
10.