Judgment on the Constitutionality of Laws

The power to determine the constitutionality of laws is vested in the Constitutional Court as a check-and-balance mechanism for the legislative branch. "Laws" include statutes or acts, treaties, and presidential decrees. There are three ways the constitutionality of laws can be judged by the Court. One is explained here and the other two is described at the Constitutional Complaints section.

If the ordinary court (i.e., any court of the Republic except the Constitutional Court) sees the necessity to ascertain constitutionality of any statute or provision before applying such law to a pending case, the ordinary court must request the Constitutional Court, on its own initiative or upon the motion of any party to the original case, to have the law's constitutionality reviewed. The court needs to set forth in writing the grounds on which the term or provision of the law must be reviewed.

The decision made by the Constitutional Court is binding for the ordinary courts, state organizations, and local governments. If laws or provisions thereof are declared unconstitutional by the Constitutional Court, they lose effect from the date of adjudication, with the exception of criminal penalties, for which the law will lose effect retroactively.

Judgment on Impeachment

The Constitutional Court has jurisdiction over impeachment proceedings brought against certain high-ranking public officials. If the President of the Republic, the Prime Minister, members of the State Council or Ministers of Executive Ministries, Justices of the Constitutional Court, judges, members of the Central Election Management Committee, the Chairman or commissioners of the Board of Audit and Inspection, or other public officials designated by law violate the Constitution or other laws in the performance of official duties, the National Assembly may pass motions for their impeachment.

Such a motion 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. However, a motion to impeach the President of the Republic must be proposed by a majority of all the members of the National Assembly and approved by at least two-thirds of all the members of the National Assembly. Any official against whom a motion for impeachment has been passed will be suspended from exercising his power until the proposed impeachment is adjudicated.

When a request for impeachment is justified, the Constitutional Court shall pronounce a judgment to the effect that the accused person be removed from public office. A judgment upholding impeachment does not exempt the accused person from other civil or penal liabilities. To date, one impeachment case was brought before the court and the case concerned the President of Korea.

Judgment on Dissolution of a Political Party

The Constitutional Court has jurisdiction over the dissolution of political parties. This jurisdiction is assigned to the Constitutional Court for the purpose of protecting fundamental democratic order from a political party. If the objectives or activities of a political party impinge upon the fundamental democratic order, the Executive, upon resolution of the State Council, may request a judgment by the Constitutional Court for the dissolution of that political party.

When a decision ordering the dissolution of a political party is pronounced by the Court, the Central Election Management Committee enforces that decision. To date, there has been no dissolution of a political party case brought before the Constitutional Court.

Judgment on Competence Dispute

The Constitutional Court has jurisdiction over competence or jurisdictional disputes (hereinafter "competence disputes") between governmental entities. If a controversy regarding the existence of jurisdiction occurs between organs of the State, between an organ of the State and a local government, or between local governments, an organ of the State or local government may request in writing a judgment of the Constitutional Court.

A request for judgment in a competence dispute must include grounds for the request and other necessary matters. The case must be brought within one 180 after the initiation of the cause.

Upon such a request for judgment, the Constitutional Court will decide on the existence or non-existence and the scope of the jurisdiction of the specific governmental bodies or organs involved. A decision rendered in a competence dispute binds all the organs of State and local governments.

Judgment on Constitutional Complaint

Constitutional Complaints is a constitutional litigation adopted when the Court was established, and is the most distinctive feature of the Constitutional Court. It may be considered a revival of the old "Shinmoonko" [a large drum for raising petitions, from the Chosun Dynasty (A.D. 1392-A.D. 1910); could be used by anyone wishing to make a direct petition to the King]. Under the Constitutional Court Act, anyone who believes his/her fundamental rights guaranteed by the Constitution has been infringed through the exercise or non-exercise of governmental powers may petition the Constitutional Court for relief. If a legislative act, presidential decree, ordinance or other law directly infringes upon an individual's fundamental or basic rights, the individual may file a constitutional complaint against the law itself.

Constitutional Complaints serve both functions: to protect the individual's fundamental rights and to safeguard the Constitution. Since the constitutional complaint is a special procedure for relief of fundamental rights, the law provides that anyone wishing to file a constitutional complaint must exhaust all other relief procedures provided by law, before filing a complaint. The Constitutional Court has some exceptions to this principle, which serves to protect the Constitution. For instance, if a case concerns a significant constitutional issue, then the merit of the case can still be heard, even if the petitioner hasn't exhausted all other procedures.

A written request for judgment on a constitutional complaint must state the name and address of the petitioner and his or her representative, the allegedly infringed right, the exercise or non-exercise of executive power, the legislative act in question, or others which caused the alleged infringement, the grounds for the request, and other necessary facts. Constitutional complaints must be filed within 90 days from the day the cause was known, or within one year from the day the cause occurred. However, if prior relief procedures had been requested, a constitutional complaint must be filed within 30 days from the day the prior decision was notified to the petitioner.

Another kind of Constitutional Complaint is prescribed in Article 68 (2) of the Constitutional Court Act. Any party to an ordinary court proceeding, whose motion for referral to the Constitutional Court for a judgment on the constitutionality of a law was rejected by the court of original jurisdiction, can have recourse in the Constitutional Court to receive a final judgment on the law's constitutionality. This avenue is available in case the ordinary courts do not request a judgment of the constitutionality of a law to the Constitutional Court, even though the law is suspected as unconstitutional. A Constitutional Complaint according to the Article 68 (2) must be requested within 30 days from the day the refusal of the court was decided.

Most ordinary courts' decisions cannot be challenged via a constitutional complaint. This exclusion, prescribed in Article 68 (1), and the requirement for petitioners to seek every possible relief in law before filing a constitutional complaint, are incompatible with each other, though prescribed in the same Article. The exclusion of ordinary courts' decisions from being challenged in constitutional complaints has been under some criticism by legal scholars.

Currently in Korea, as in most countries with Constitutional Courts, the proportion of constitutional complaint cases in comparison to the total number of cases has been high. Therefore, the Court has set up a prior examination bench, the "Small Bench", to determine whether a constitutional complaint will be accepted to be heard by the Court. A Small Bench is composed of three Justices of the Constitutional Court, and the Bench takes charge of prior review of a constitutional complaint. To invalidate a constitutional complaint, the Small Bench needs a unanimous vote of all the participating Justices.

A judgment made by the Full Bench of the Constitutional Court binds all organs of the State and local governments.

Updated : 2008. 08. 08.