THE STRUCTURE OF THE CONSTITUTIONAL ADJUDICATION SYSTEM IN KOREA

1. Legal Sources of Constitutional Adjudication

The establishment and functioning of the Constitutional Court (�the court’) is based upon Chapter 6 of the current Constitution, consisting of three articles from Art.

The Constitutional Court Act (CCA) was first enacted on 5 August 1988 and revised 11 times as of 15 February 2009 according to the legislative dele­gation clause of Art. 113 of the Constitution to further elaborate the organiza­tion of the court and procedures of constitutional adjudication.

The court has the constitutional power to make rules and regulations relating to its proceedings and internal discipline and regulations on admin­istrative matters (Art. 113(2) of the Constitution). They include the Constitutional Court Rules on Adjudication Proceedings, the Constitutional Court Rules on Council of Justices, and the Constitutional Court Advisory Committee Rules.

2. Jurisdiction

Under Art. 111 of the Constitution, the court has jurisdiction in five areas: the constitutionality of a law upon the request of ordinary courts; impeachment; dissolution of a political party; competence disputes between State agencies, between State agencies and local governments, and between local govern­ments; and constitutional complaint as prescribed by Act.

The court has power to review the constitutionality of statutes or Acts made by the National Assembly upon the request of ordinary courts.

The courts set up by Art. 101 of the Constitution, including the military court, shall request a decision of the Constitutional Court when they find that the constitutionality of a law is at issue in a trial or judicial judgment (Art. 107(1) of the Constitution). The necessity of such a request can be decided ex officio or by decision upon a motion by a party to the original case (Art. 41(1) of the CCA). The request of the courts to the Constitutional Court should be by way of the Supreme Court for administrative purposes (Art. 41(5) of CCA).^[322] The decision of the courts on the request is final so that no appeal shall be made against it (Art. 41(4) of CCA). If the motion of a party to the original case is rejected, the party may file a constitutional complaint with the Constitutional Court (Art. 68(2) of CCA).

Decisions of unconstitutionality can only be made with the concurrence of six or more Justices (Art. 113(1) of the Constitution and Art. 23(2) of CCA). Any decision that statutes at stake are unconstitutional shall bind the ordinary courts, other state agencies, and local governments (Art. 47(1) of CCA). Such laws declared unconstitutional shall lose their effect from the day on which the decision is made, but laws relating to criminal penalties lose effect retroac­tively (Art. 47(2) of CCA). In this regard, however, there are some exceptions developed by not only the Constitutional Court but also the Supreme Court. The very case where the constitutional adjudication issue arises should comply with the court’s unconstitutionality decision because it is made particularly not to apply the unconstitutional law to the pending case. The Constitutional Court expanded this exceptional effect to not only those cases that are already included in the docket of the Constitutional Court but also those cases that are pending in the courts where the same laws should be applied at the time of the court’s unconstitutionality decision.

As of 31 January 2009, 189 unconstitutionality decisions, including deci­sions of incompatibility with the Constitution and decisions of unconstitution- ality/constitutionality in a certain context, were made out of a total of 595 requests made to the court.

Regarding the scope of the court’s jurisdiction, there have been some criti­cisms (J. Kim 2001, pp. 22-4). For example, it has been argued that the legal requirement for constitutional review of statutes is too narrow to protect the values and order enshrined in the Constitution. It is suggested that a French­style preliminary review or a German-style abstract norms control should be adopted so that the constitutionality of laws should be examined before their promulgation or application to the citizen’s life. Such recommendations have the advantage of avoiding the legal instability that inevitably results from a decision of unconstitutionality under post review systems. However, the expansion of the court’s constitutional review power may pave a way for the �judicialization of politics’ (Hirschl 2004) in that what has been decided and should be decided in politics increasingly refer to the constitutional review of the court.

B. Impeachment

The court is empowered to decide whether certain public officials have violated the Constitution or other Acts in the performance of their official functions and should therefore be removed from office. The officials desig­nated to be impeached by Art. 65(1) of the Constitution and statutes or Acts of the National Assembly include the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and prosecutors.

The overall impeachment process starts with a resolution of the National Assembly that must be proposed by one-third or more of the total members of the National Assembly and passed by a concurrent vote of a majority of the total members of the National Assembly, except in cases of impeachment against the President. In the case of the President, the motion of impeachment must be proposed by a majority of the total members of the National Assembly and approved by two-thirds or more of the total members of the National Assembly (Art. 65(2) of the Constitution).

The official impeached by the National Assembly will be suspended from exercising his or her power until the court makes a decision on impeachment. The court’s impeachment decision needs the concurrence of six Justices or more (Art. 113(1) of the Constitution and Art. 23(2) of CCA). It shall not extend further than the removal of the accused officials from public office though it shall not exempt them from civil or criminal liability (Art. 65(4) of the Constitution and Art. 54(1) of CCA). The impeached officials shall not be a public official until five years have passed from the date on which the impeachment decision is pronounced (Art. 54(2) of CCA).

As of 31 January 2009, only one impeachment case was brought before the court. It was against the President Roh Moo Hyun in 2004 and was ultimately rejected, though some counts of violation of the Constitution and the Election Act were found by the court.

C. Dissolution of political parties

The court has power to dissolve political parties upon the Executive’s motion with the State Council’s deliberation if it finds that their purposes or activities would be contrary to the basic order of democracy.

The court may make, ex officio or upon a motion of the applicant, a deci­sion to suspend the activities of the defendant until its final decision of disso­lution is made (Art. 57 of CCA). Notice of the written decision ordering dissolution of a political party should be given not only to the parties concerned but also the National Assembly, the Executive, and the National Election Commission (Art.

D. Competence disputes

The court’s fourth area of jurisdiction is Competence or Jurisdictional Disputes (Competence Disputes) between public authorities. It has the power to decide which public authorities have competence or jurisdiction when any controversy on the existence or the scope of competence arises between state agencies, between a state agency and a local government, or between local governments. However, every competence dispute can be brought before the court. A concerned state agency or local government may request the court to engage in competence review only when an action or omission by the respon­dent infringes or is in obvious danger of infringing upon the applicant’s competence granted by the Constitution or Acts (Art. 61(2) of CCA).

Public authorities qualified to make a request for a competence dispute are state agencies such as the National Assembly, the Executive, ordinary courts, and the National Election Commission and local governments such as the Special Metropolitan City, Metropolitan City or Province, the City/County, or Self-governing District. The court has expanded the scope of state agencies that may bring competence disputes depending on whether they are instituted by the Constitution and have independent powers granted by the Constitution or statute and/or whether there is any dispute resolution procedure through which competence disputes between such agencies can be resolved. State agencies have become recognized as qualified applicants in the court’s jurisprudence on such matters, and such agencies include the Speaker and Vice Speaker of the National Assembly, members of the National Assembly, and committees of the National Assembly.^[323]

The court may, upon receiving a request for adjudication of a competence dispute, make ex officio or upon a motion by the applicant a decision to suspend the effect of an action taken by the respondent that is the object of the adjudication until the pronouncement of a final decision (Art.

The court’s final decision is a binding force over all public authorities. However, even such a decision to revoke public authorities’ action may not alter any legal effect that has already been made to the person whom the action is directed against (Art. 67 of CCA).

As of 31 January 2009, the court rendered 40 decisions out of 55 applica­tions filed in this area of disputes.

E. Constitutional complaints

The court also has jurisdiction over constitutional complaints brought by ordi­nary citizens, either when his basic constitutional rights have been violated by an exercise or non-exercise of governmental power or when a party of an orig­inal case for the concerned courts’ request to the court for constitutional review of statutes or Acts is rejected. While complaints comprising the latter category of constitutional complaints are called �complaints for constitutional review’ or �complaints via Art. 68(2) of CCA,’ the former are usually referred to as �complaints for rights redress’ or �complaints via Art. 68(1) of CCA.’ The two categories are different from each other in terms of the legal requirements for a petitioner to file a complaint. As far as complaints for constitutional review are concerned, like constitutional review proceedings, relevancy of the laws applied to the original case is required to reach to the court’s decision on the merits. Complaints for rights redress require that the petitioners exhaust all relief processes provided by law. The petitioners in complaints for rights redress may not challenge the judgments of the ordinary courts except when those judgments were made according to such laws made unconstitutional by the court.

More than 90 per cent of total cases of the court are constitutional complaints. As of 31 January 2009, 14,444 cases have been filed in the form of complaints for rights redress while 1,846 cases have been filed in the form of complaints for constitutional review.

3. Organization of the Court

A. Constitutional justices

The court consists of nine Justices appointed by the President. The President’s power to appoint is constitutionally limited because among the Justices, he should appoint three selected by the National Assembly and three designated by the Chief Justice of the Supreme Court (Art. 111(2) of the Constitution). To be appointed as Justices, all the candidates should be �qualified as judges,’ more than 40 years of age, and have more than 15 years of career experience as a judge, prosecutor, or attorney (Art. 111(2) of the Constitution and Art. 5 of the CCA). The Justices’ term in office is six years and may be renewed (Art. 7(1) of the CCA). They should retire at the age of 65 except for the Chief Justice whose retirement age is 70 (Art. 7(2) of the CCA). Until their retire­ment age, no Justices are forced out of office against their will unless they are impeached or are criminally sanctioned with a sentence of imprisonment or something more severe. Justices are subject to constitutional obligations not to join a political party or participate in politics (Art. 112(2) of the Constitution and Art. 9 of the CCA).

Some problems with the process of constitutional justice appointment and the status of constitutional justices can be identified (J. Kim 2005). Firstly, the Chief Justice of the Supreme Court’s power of nomination of three Justices has been critized (Yang et al. 1999, pp. 14-16; H. Kim 1998, pp. 68-9, 72-3). Secondly, strong criticism has been raised against the constitu­tional requirement that only those qualified as judges may be chosen as Justices. Given the homogeneous culture of the legal profession due to a highly selective judicial examination process combined with the simplified training course, such a requirement inhibits the diversity of Justices of Court. Thirdly, it has been pointed out that the relatively short term of Justices with their reappointment scheme may hinder the independence of the court by making Justices sensitive to the opinions of those with appointive power (Yang et al. 1999, pp. 17-19).

B. Chief Justice^[325]

The Chief Justice of the court is appointed by the President with the consent of the National Assembly. He represents the court, takes charge of the affairs of the court, and directs and supervises those public officials under his or her authority.

C. Council of Justices

Article 16 of CCA sets up a Council of Justices with the power of decision­making concerning important matters related to constitutionally designated functions or the organization of the court. The Council consists of all Justices including the Chief Justice as the Chairperson with a right to vote. Decisions of the Council of Justices shall be taken with the attendance of seven or more Justices and by the affirmative vote of a majority of the Justices present. The CounciTs terms of reference cover: (1) matters concerning the enactment and amendment of the Constitutional Court Rules and matters concerning a submission of legislative opinions relating to the organization, personnel affairs, operation, adjudicative procedure, and other functions of the Court; (2) matters concerning a request for budget, appropriation of reserve funds, and settlement of accounts; (3) matters concerning the appointment or dismissal of the Secretary General, Deputy Secretary General, Constitution Research Officers, and public officials of Grade III or higher; and (4) matters deemed specially important and presented by the Chief Justice of the Court for discus­sion.

D. The Constitutional Court Administration and research officers

The court maintains the Constitutional Court Administration, which is respon­sible for the general administrative affairs of the court, and the Constitution Research Officers, who are responsible for investigation and research concern­ing the deliberation and adjudication of cases.

The head of the Administration is the Secretary General who, under the direction of the President of the Constitutional Court, takes charge of the affairs of the administrative department, directs and supervises those public officials under his or her authority, and may attend the National Assembly or the State Council and speak about the administration of the Constitutional Court on behalf of the Chief Justice (Art. 17 of the CCA).

The Constitution Research Officers are established to be engaged in inves­tigation and research concerning the deliberation and adjudication of cases under the order of the Chief Justice of the Court (Art. 19 of the CCA). The court may appoint academic advisers for professional investigation and research concerning the deliberation and adjudication of cases (Art. 19-3 of the CCA).

E. Various committees

There are various committees set up according to various Acts or the Constitutional Court Rules. They are intended to provide professional opin­ions regarding the Court’s function and administration. They include the Constitutional Court Advisory Committee, the Constitutional Court Ethics Committee, and the Constitutional Court Committee for Rules Deliberation.

4. Institutional Features

A. Intensified quorum in major forms of decision

There are two different quorums in the Court’s decision-making process. In general, the court decides on a majority basis. However, Art. 113(1) of the Constitution and Art. 23(2) of the CCA requires a special quorum of six Justices when the court strikes down a law, impeaches certain public office holders, decides to dissolve a political party, or makes a decision to uphold a constitutional complaint. Such an intensified quorum is also required to over­rule a precedent on the interpretation and application of the Constitution or laws made by the court. The underlying justification of the special quorum is to make it much more difficult for other independent branches’ decisions to be made void or rejected. However, giving state institutions a much higher prior­ity may not be compatible with the ideal of constitutional adjudication cher­ishing the protection of constitutional rights and the rule of law.^[326]

B. Dualism in constitutional review of norms

As seen above, the object of the court’s power of constitutional review is confined to statutes or Acts. According to Art. 107(2) of the Constitution, constitutionality of subordinate legislation such as administrative orders, regu­lations, rules, and measures are subject to the Supreme Court’s judgment. This dualism causes serious problems:

[t]he Constitution has no express provision concerning whose opinion would be final if there is a difference in constitutional interpretation between the two institu­tions. This incomplete dualism not only sows the seeds of conflict between the two institutions, but also has a danger of undermining the consistency and uniformity of the constitutional order. Moreover, the Supreme Court's power to review adminis­trative legislation can seriously undermine the function of constitutional complaint by excluding almost all administrative actions, which have the highest possibility of violating human rights (J. Kim 2001, p. 28).

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C. Mandatory representation by attorney

Although litigation generally does not require mandatory representation by Attorney, Art. 25 of the CCA requires that every party in any constitutional adjudication proceeding be represented by an attorney. This means that with­out an attorney, ordinary citizens cannot bring their own cases before the court as they are forced by law to hire an attorney. The problem of this requirement is that it may prevent those with limited financial resources from having recourse in the court. For this reason, Art. 25(3) of the CCA was challenged in 1990. The court upheld the constitutionality of this provision, however, on the ground that �mandatory representation by attorney would be advantageous to the petitioners by guaranteeing professional and skillful representation and thus preventing reckless and negligent pursuit of complaints.’^[327] This line of the court’s jurisprudence can be challenged because the real issue at stake is the money required to hire an attorney and because it is very difficult to accept that the question of whether fundamental rights are infringed must depend on money rather than the truth of the matter.

D. Exclusion of judicial judgments from constitutional complaints

Art. 68(1) of the CCA excludes judicial judgments from the court’s jurisdic­tion over constitutional complaints. At first glance, this exclusion may not raise any serious objections, especially because the ordinary courts including the Supreme Court, like the Constitutional Court, consist of judges and are envisaged to be guardians of constitutional rights just as much as the Constitutional Court. From this viewpoint, one could view such review as one more, final instance for the Constitutional Court to review judicial decisions. However, it is argued that the judicial branch itself is a public authority which is in danger of abusing power, though this danger is comparably less than legislative and administrative counterparts, and therefore it is justifiable to establish another mechanism to control judicial power in order to intensify the protection of individual constitutional rights.

The court upheld the exclusion clause itself in a constitutional complaint case by saying that it is within the discretion of the legislature to decide to what extent the Constitutional Court can have jurisdiction over constitutional complaints. However, the court made clear at the same time that the exclusion clause should not be interpreted as allowing the courts to apply the laws made unconstitutional by the Constitutional Court in ongoing ordinary cases. Thus, in cases where the courts infringe people’s constitutional rights by applying unconstitutional laws, the Constitutional Court’sjurisdiction over constitu­tional complaints may apply.^[328]

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IV.