Jurisdiction
Constitutional Complaint
A constitutional complaint is a system where anyone whose basic rights guaranteed under the Constitution have been infringed upon by public authorities may seek relief by filing a complaint with the Constitutional Court. Both natural and juridical persons may lodge a constitutional complaint. While in other adjudications of the Court jurisdiction, the National Assembly, Administration, ordinary courts or local governments are the claimants, an individual becomes the claimant in a constitutional complaint to pursue direct remedy for basic rights infringement. Therefore, it is one of the key constitutional mechanisms to assure the basic rights. With the introduction of the constitutional complaint Korean democracy took an important step forward, and it also has contributed to promoting constitutional adjudication.
Types and Causes for Request
Article 68 (1) of the Constitutional Court Act
Any person whose basic rights guaranteed by the Constitution have been
infringed upon by the exercise or non-exercise of public power, may
file a constitutional complaint with the Constitutional Court.
However, if any remedy is provided by other laws, no one may file a
constitutional complaint without having exhausted all such processes.
The legislative power of the National Assembly is also a public power.
Thus, a statute or non-exercise of power by the legislature that
directly infringes upon the basic right is also subject to a
constitutional complaint.
A final and conclusive judgment
rendered by a court may be subject to a constitutional complaint in
any of the following cases: 1) where a court judgment has infringed
basic rights by being contrary to the binding effect of Constitutional
Court decisions; 2) where a court judgment has infringed basic rights
by failing to follow due process as prescribed by the Constitution and
statutes; 3) where it is manifest that a court judgment has infringed
basic rights by violating the Constitution or statutes.
Article 68 (2) of the Constitutional Court Act
If the motion made under Article 41 (1) for adjudication on the constitutionality of statutes is denied, the party may file a constitutional complaint with the Constitutional Court. In this case, the party shall be precluded from filing a motion to request for review on the constitutionality of statutes for the same cause in the proceedings of the original case.
Time Limit for Filing
A constitutional complaint under Article 68 (1) shall be filed within
90 days after the existence of the cause is known, and within one year
after the cause occurs. If a remedy process according to other
statutes has taken place, however, the constitutional complaint shall
be filed within 30 days after the notification of the final decision.
A constitutional complaint under Article 68 (2) shall be filed within
30 days after receipt of the decision that a request for adjudication
on constitutionality of statutes is dismissed.
A constitutional
complaint against a court judgment shall be filed within 30 days from
the date the judgment becomes final and conclusive.
Filing Procedure
A petition for a constitutional complaint under Article 68 (1) shall
include: the petitioner and his or her counsel; the basic right
alleged to have been infringed; the cause of infringement, including
the exercise or non-exercise of public power; the grounds for filing
the complaint; and other necessary matters.
When filing a
constitutional complaint under Article 68 (1) of the Constitutional
Court Act against a court judgment, a petition stating the following
shall be submitted to the Constitutional Court: the petitioner and his
or her counsel; the respondent; the right alleged to have been
infringed; the judgment challenged ; the grounds for the complaint;
and any other necessary matters.
When a constitutional
complaint under Article 68 (1) challenges a court judgment, the
petition shall be accompanied by a copy of the judgment and a
certificate of its finality.
A petition for a constitutional
complaint under Article 68 (2) shall include: the petitioner and his
or her counsel; the case in question and the parties; the statute or
provision alleged to be unconstitutional; reason for such
interpretation; and, other necessary matters. The petition must
include a certificate of appointing a legal counsel or application for
a court-appointed counsel.
Prior Review
When a constitutional complaint is filed, one of the Panels consisting of three Justices conducts a prior review. In case of any of the followings, the Panel shall dismiss the petition by a unanimous decision: the constitutional complaint is filed without having exhausted all the remedy processes provided by other laws, the petition does not meet the requirements for filing under Article 68 (3) of the Constitutional Court Act; a constitutional complaint is filed after expiration of the time limit; a constitutional complaint is filed without a counsel, or the court-appointed counsel; a constitutional complaint is inadmissible and the inadmissibility cannot be corrected. When the Panel does not reach a unanimous decision of dismissal, it shall decide to refer the case to the Full Bench. When a dismissal is not decided within 30 days after request of adjudication on the constitutional complaint, it shall be deemed that a decision to transfer it to the Full Bench is made.
Presentation of Opinions
State agencies or public organizations that have an interest in adjudication on a constitutional complaint, and the Ministry of Justice may present to the Constitutional Court an amicus brief on the adjudication. When a constitutional complaint against a court judgment filed under Article 68 (1) of the Constitutional Court Act or a constitutional complaint prescribed in Article 68 (2) of the same Act is transferred to the Full Bench, the party to the underlying case and the Ministry of Justice can submit to the Court an amicus brief on the adjudication.
Decision
Three types of decisions are made by the Constitutional Court;
rejection, dismissal and upholding. Rejection is made when the request
of adjudication does not have rationale; dismissal is made when the
request was made unlawfully; and upholding is made when the request
has reason. According to Article 68 (1) of the Constitutional Court
Act, if a request of adjudication was found reasonable, the
Constitutional Court shall specify the infringed basic right and
exercise or non-exercise of the governmental power that caused such
infringement before cancelling the governmental power or holding such
non-exercise unconstitutional. If the Court attributes the exercise or
non-exercise of the governmental power to the unconstitutional
statutes or provisions concerned, it can declare them
unconstitutional. If a request of adjudication was found reasonable
according to Article 68 (2) of the Constitution Court Act, the Court
shall declare the concerned statute or provision unconstitutional. If
the unconstitutionality of a provision makes the whole statute
unenforceable, the Court may announce the whole statute
unconstitutional.
In a constitutional complaint filed under
Article 68 (1), if a court judgment constitutes the exercise of public
power causing the infringement of basic rights, the Constitutional
Court shall vacate that judgment. The ordinary court shall then
adjudicate the case again in accordance with the Constitutional
Court’s decision.
Effect of Decision
The Court’s upholding decision on the constitutional complaint
filed according to Article 68 (1) shall bind all state agencies and
local governments. When the Constitutional Court upholds the
constitutional complaint against non-exercise of the public
authorities, the respondent shall make a disposition pursuant to the
purport of the decision.
The Court’s upholding decision
on the constitutional complaint filed according to Article 68 (2)
shall bind all ordinary courts, state agencies and local governments.
The statute or provision found unconstitutional shall lose its effect
from the date of the decision. When the constitutional complaint under
Article 68 (2) of the Constitutional Court Act has been upheld, the
party may claim for a retrial with respect to a final judgment having
applied the statutes or any of the provisions decided
unconstitutional, whether criminal, civil or administrative. As a
ruling of unconstitutionality regarding statute or provision on
criminal penalties has effect retroactively, a person convicted based
upon such a statute or provision may claim a retrial.
In a
constitutional complaint filed under Article 68 (1), if a court
judgment constitutes the exercise of public power causing the
infringement of basic rights, the Constitutional Court shall vacate
that judgment. The ordinary court shall then adjudicate the case again
in accordance with the Constitutional Court’s decision.