Constitutional Court of Korea

  On February 27, 2025, the Court, in a unanimous decision by all Justices, ruled on a competence dispute case between Claimant, the National Assembly, and Respondent, the Acting President and Minister of Economy and Finance.

 Claimant sought a decision (1) confirming that Respondent’s failure to appoint Ma Eun-hyeok, whom Claimant elected as a Justice, constituted an infringement of its constitutional or statutory authority (“confirmation of infringement of authority”); and (2) confirming Ma Eun-hyeok’s status as a Justice or ordering Respondent to appoint him as a Justice (“confirmation of status or order for appointment”).

 The Court upheld the claim for confirmation of infringement of authority, finding that Respondent’s failure to appoint Ma Eun-hyeok violated Claimant’s authority to form the Court by electing Justices. However, it dismissed the claim for confirmation of status or order for appointment as nonjusticiable.

 While all Justices agreed on the holding, three Justices issued a concurring opinion on the justiciability of the claim for confirmation of infringement of authority.

  On February 27, 2025, the Court, in a unanimous decision by all eight Justices, held that Respondent (BAI)’s inspection of Claimant (National Election Commission)’s personnel management status, including recruitment, conducted from June 1, 2023 to February 25, 2025 infringed Claimant’s authority to independently carry out its functions, as guaranteed by the Constitution and the Election Commission Act.

  On January 23, 2025, the Court, in a unanimous decision by all participating Justices, issued the following rulings on Article 17, Section (3) of the Act on Counter-Terrorism for the Protection of Citizens and Public Security (enacted by Act No. 14071 on March 3, 2016), which penalizes persons who recommend or instigate others to join a terrorist group: 1) the Court dismissed as nonjusticiable the claim against the portion of the provision penalizing recommendations to join a terrorist group, because the claim did not meet the requirement of relevance to the underlying penal case; and 2) the Court further ruled that the portion of the provision penalizing instigation to join such a group does not violate the rule against excessive restriction and is therefore not unconstitutional.

  On January 23, 2025, the Court, in a 4-4 decision, rejected an impeachment petition filed by the National Assembly against Respondent. The petition alleged that Respondent severely violated the Constitution and statutes during the plenary meeting of the Korea Communications Commission on July 31, 2024 (hereinafter the "Meeting") by 1) adopting resolutions with only two Commission members present, 2) not recusing herself from an agenda item concerning the appointment of executives at the Foundation for Broadcast Culture, 3) participating in the resolution on a request to recuse her and dismissing that request, and 4) recommending board members for the Korean Broadcasting System and appointing board members for the Foundation for Broadcast Culture.

  Four Justices (Justices Kim Hyungdu, Cheong Hyungsik, Kim Bok-hyeong, and Cho Hanchang) filed an opinion rejecting the petition, expressing the view that Respondent’s deliberations and resolutions at the Meeting are not recognized as a constitutional or statutory violation.

  Four Justices (Justices Moon Hyungbae, Lee Mison, Jung Jungmi, and Chung Kyesun) filed an opinion upholding the petition, reasoning that Respondent’s act of passing resolutions at the Meeting with only two incumbent members of the Korea Communications Commission present violated Article 13, Section (2) of the Act on the Establishment and Operation of Korea Communications Commission, which sets the quorum for resolutions of the Commission. They found that this violation, in itself, constituted a grave statutory breach sufficient to justify removal from office.

  Additionally, Justice Kim Hyungdu filed a concurring opinion supporting the rejecting opinion, while Justices Jung Jungmi and Chung Kyesun filed a concurring opinion supporting the upholding opinion.

  On August 29, 2024, the Court issued the following rulings.

  1. The Court held that Article 8, Section (1) of the “Framework Act on Carbon Neutrality and Green Growth for Coping with the Climate Crisis” (the “Act”) does not conform to the Constitution. It ordered that this provision remain in effect until amended by February 28, 2026. This section requires the government to set “a national mid- and long-term greenhouse gas reduction target” “to reduce national greenhouse gas emissions by a ratio prescribed by Presidential Decree not less than 35 percent from the 2018 level by 2030.”  

  2. The Court rejected the claim challenging Article 3, Section (1) of the Act’s Enforcement Decree, which specifies the above reduction ratio as “40 percent.”  

  3. The Court rejected the claims challenging both “B. Sectoral Reduction Targets” and “C. Annual Reduction Targets” under “V. Mid- and Long-Term Reduction Targets” in the “First National Plan for Carbon Neutrality and Green Growth.” This administrative plan, adopted by the government on April 11, 2023, sets numerical targets for national greenhouse gas emissions and removals by sector and by year for the period from 2023 to 2030.  

  4. The Court dismissed the remaining claims and the motions to intervene as a Complainant and to intervene in support of Complainants.

  On July 18, 2024, the Court, in a 7-2 decision, held unconstitutional a provision of the Court Organization Act that states political party membership within the past three years as a ground for disqualification from being appointed as a judge. The Court reasoned that this provision infringes the right of Complainant to hold public office.

  Justices Lee Eunae and Lee Youngjin filed an opinion of partial unconstitutionality, stating that while the portion of the above provision concerning the Chief Justice and Justices of the Supreme Court is not unconstitutional, the portion relating to a judge is unconstitutional.

  On June 27, 2024, the Court unanimously held that the portion of Article 250(2) (crime of publishing false information) of the Public Official Election Act regarding an individual publishing false information about a person who intends to be a candidate does not violate the Constitution. However, the Court, in a 6-to-3 decision, held unconstitutional the portion of Article 251 (crime of defaming a candidate) of the same Act concerning a person who intends to be a candidate, reasoning that it violates the rule against excessive restriction and infringes freedom of political expression.

  Justices Lee Jongseok, Lee Eunae, and Cheong Hyungsik filed a dissenting opinion, stating that the portion of Article 251 (crime of defaming a candidate) of the Public Official Election Act relating to a person who intends to be a candidate does not infringe freedom of political expression by violating the rule against excessive restriction.

  On June 27, 2024, a unanimous Court held nonconforming to the Constitution Article 328, Section (1) of the Criminal Act (amended by Act No. 7427 on March 31, 2005). This section remits punishment for the crime of obstructing the exercise of a right among lineal blood relatives, spouses, relatives living together, family members living together, or their spouses. 

  On May 30, 2024, the Court, in a 6-to-3 decision, rejected a claim against Article 43, Section (2) of the Enforcement Decree of the Broadcasting Act, reasoning that it does not infringe the freedom of broadcasting of Complainant. This section prohibits the Korean Electric Power Corporation from combining TV license fees and electricity fees in its bill notice. The Court also dismissed a claim regarding the shortened legislative notice period during the amendment process of the above decree provision.

  Justices Kim Kiyoung, Moon Hyungbae, and Lee Mison filed a dissenting opinion, stating that the above provision infringes Complainant's freedom of broadcasting by violating the principle of statutory reservation. Additionally, Justices Kim Kiyoung and Moon Hyungbae filed a separate dissenting opinion, arguing that the provision infringes Complainant's freedom of broadcasting by violating the principles of due process and legitimate expectations.

 On May 30, 2024, the Court, in a 5-to-4 decision, rejected claims against the following provisions: 1) Article 18, Section (1) of the Act on Assignment, Performance, Etc. of Alternative Service, which sets the service period for alternative service personnel at “36 months”; 2) Article 21, Section (2) of the same Act, which requires alternative service personnel to live communally while serving; and 3) Article 18 of the Enforcement Decree of the same Act, which limits alternative service agencies to “correctional facilities.”

  Justices Lee Jongseok, Kim Kiyoung, Moon Hyungbae, and Lee Mison filed a dissenting opinion, expressing the view that these provisions infringe freedom of conscience.