THE PRINCIPLES OF CONSTITUTIONAL ADJUDICATION IN KOREA
The court has developed a number of principles and rules of constitutional adjudication, both procedural and substantive, over the last two decades. They have been produced through instances of constitutional and statutory interpreÂtation.
What follows is an introduction of the main principles or rules.1. Procedural Principles and Rules
A. Extension of the rule of justiciabilty in constitutional complaints
To bring their cases before the court, claimants in constitutional complaints need to prove in principle that their constitutional rights are infringed in a direct way by activities or omissions of public authorities. Firstly, the claimants themselves must show that they have suffered or will suffer an injury by their own constitutional rights being infringed. This means that if anybody else’s rights are encroached rather than the claimant himself, it is not justiciable. For example, even the father of a victim of medical malpractice is not qualified to challenge the prosecutor’s denial of indictment.[329] Secondly, the claimants should prove that the suffered right reaches the level of constiÂtutional rights as opposed to de facto privileges. For example, the court ruled that even though the legislature’s decisions to expand permits to sell oriental herb medicines to pharmacists may affect the earnings of oriental medical doctors who had previously had exclusive permits to sell such herb medicines, the affected interests are not rights but privileges so that they cannot be redressed through constitutional complaint.[330] Thirdly, the infringement should be directly caused by the activities of public authorities. This means that indiÂrect impact between the cause of infringement and its result may not be suffiÂcient to fulfill the standing requirement. For example, legislative provisions allowing construction zoning per se cannot be challenged in the process of constitutional complaints because they are merely the legal basis of adminisÂtrative zoning so that their involvement with infringement cannot be recogÂnized as a direct one.[331] Fourthly, it should be alleged that the infringement has already taken place or that there is a danger of immediate infringement.[332]
The court has developed jurisprudence stating that the standing requireÂments may be waived or eased in certain contexts.
In a 1991 constitutional complaint case[333] reviewing the law enforcement authority’s rejection of detainees’ application to meet with their counsel, the court held that (1) if an issue at stake is of vital importance to the maintenance of constitutional order so that the court should clarify what the constitutional provisions mean, or (2) if there is a strong possibility that similar infringement upon constitutional rights would take place repeatedly, it would review on the merits even if personal and legally protectable interests in the relevant case were extinÂguished. The court justified its position by declaring that constitutional complaints are envisaged to perform not single but dual functions so that they can be used not only to provide constitutional relief to particular individuals (the â€?subjective’ function) but also to protect constitutional order (â€?objective’ function).B. Exceptions to the exhaustion principle in constitutional complaints As mentioned above, Art. 68(1) of the CCArequires anyone who wishes to file constitutional complaints to the court to exhaust all relief processes provided by other laws. The court narrowed the meaning of â€?relief process’ to those processes through which the claimant may challenge directly the activities or omissions of public authorities. Therefore, the possibility of legal processes for damages or compensation cannot obstruct constitutional complaints.
Furthermore, the court recognized exceptional cases where the exhaustion principle does not apply. It held that the claimants may file constitutional complaints without prior exhaustion of other relief processes if the requireÂment of such exhaustion is unreasonable. For example, if the failure of exhausÂtion is due to mistake, the responsibility of which cannot be reduced to the claimants; or if there is no reasonable expectation because the availability of other relief processes is not firmly recognized.[334] On the other hand, if there is no legal relief at all, the claimants may bring complaints before the court.
For example, constitutional complaints can be raised against orders and rules when they infringe upon the claimants’ constitutional rights without any other substantive intermediate involvement of administration,[335] or activities or omissions of public authorities that the Supreme Court has regarded as unjusÂtifiable by using strict construction of protectable interests in administrative suits.[336]2. Substantive Principles and Rules
The court has also developed a number of substantive principles and rules against which subject matters are examined. They include the principle against excessive restriction (the proportionality principle), the multi-tier equal protection principle, the principle of clarity of law,[337] prohibition of blanket delegation,[338] and protection of expectation interest principle. Two of the most frequently cited substantive principles, prohibition of excessive restriction principle and multi-tier equal protection principle, will be introduced below.
A. Prohibition of excessive restriction principle or proportionality principle
Art. 37(2) of the Constitution provides that â€?the freedoms and rights of citizens may be restricted as prescribed by Act only when necessary for national secuÂrity, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated’. The court construes the â€?only when necessary’ clause of this proviÂsion as the constitutional acknowledgement of â€?prohibition of excessive restriction principle’ or â€?proportionality principle,’ which originally stems from the rule of law as a basic constitutional principle.
In the court’s jurisprudence, this principle consists of four elements: (1) legitimacy or rationality of the end, (2) appropriateness of the means, (3) the least restrictive means, and (4) balance between the importance of public interÂest and the degree of infringement of freedoms or rights.
To be constitutional, state activities in general and legislation restricting constitutional rights in particular should pass the four-tier test through which all four elements of the proportionality principle apply to state restrictions.[339]In a number of cases, the court has struck down laws on the grounds that they violated the prohibition of excessive restriction principle. For example, Article 58-2 Section 1 of the Private School Act was invalidated because the provision that mandated the removal of all private school teachers being crimÂinally prosecuted from their posts did not comply with the prohibition of excessive restriction. The court’s reasoning pointed out that the mandated removal provision deprived the school of the discretion to consider in the dismissal procedure â€?severity of the charged offense, credibility of evidence and the predicted judgment.’[340]
B. Multi-tier equal protection principle
Along with the proportionality principle, the most commonly cited principle among the court’s jurisprudence is its multi-tiered equal protection principle. In construing equality before the law as set forth in Art. 11(1) of the Constitution, the court initially took a very relaxed stance in that discriminaÂtory treatment is not always regarded as unconstitutional under the principle of equality unless it is based upon arbitrary intention.
In a 1999 constitutional complaint case where the extra points system for veterans of a certain grade was at issue, however, the court changed its earlier position and developed a two-tiered approach in examining legislation containing unequal treatment, thus putting forward a more stringent test. The court held that when reviewing cases related to the right of equality or the prinÂciple of equality, a strict standard of review should be taken if the case is connected to certain areas which are given extra equal protection by the express provisions of the Constitution, or if unequal treatment causes a severe restriction on constitutional rights connected to such treatment.
This excepÂtional strict scrutiny as opposed to the regular arbitrariness test means a test of requiring proportionality between the purpose of discrimination and the means employed to achieve that purpose.[341]This two-tier test was further elaborated upon in 2001. In reviewing another extra points system, the court divided the strict standard of review in equality cases into two categories: strict scrutiny in a narrow sense and relaxed strict scrutiny. The latter is employed when the Constitution specifically recognizes privileged treatment even though such treatment may place certain areas of rights in danger of severe encroachment. For example, the court ruled that a relaxed scrutiny test should be applied to an Act incorporating Art. 32(6) of the Constitution, which stipulates that the opportunity to work shall be accorded preferentially according the conditions as prescribed by Act, to those who have given distinguished service to the State.[342]
V.