Constitutional Court of Korea
Constitutional Court of Korea
1988
Appointed by President upon nomination of equal portions from National Assembly, Supreme Court Chief Justice and the President
Constitution of South Korea Chapter VI
Six years, renewable
(mandatory retirement at the age of 70)
9 (by constitution)
30 November 2023
Heonbeop Jaepanso
Hŏnpŏp Chaep'anso
The Constitutional Court of Korea (Korean: 헌법재판소; Hanja: 憲法裁判所; RR: Heonbeop Jaepanso) is one of the highest courts—along with the Supreme Court—in South Korea's judiciary that exercises constitutional review, seated in Jongno, Seoul. The South Korean Constitution vests judicial power in courts composed of judges, which establishes the ordinary-court system, but also separates an independent constitutional court and grants it exclusive jurisdiction over matters of constitutionality. Specifically, Chapter VI Article 111(1) of the South Korean Constitution specifies the following cases to be exclusively reviewed by the Constitutional Court:[1]
Article 111(2) states that the Constitutional Court shall consist of nine justices qualified to be court judges, all of whom shall be appointed by the president of South Korea. Even though all nine justices must be appointed by the president, Article 111(3) states that the National Assembly and the Chief Justice shall nominate three justices each, which implies the remaining three are nominated by the president of South Korea. Article 111(4) states that the candidate for the president of the Constitutional Court must obtain the approval of the National Assembly before the President appoints them.
The South Korean Constitution broadly delineates the roles of courts, both ordinary courts and the Constitutional Court, and entrusts the National Assembly to legislate the specifics of their functions. The National Assembly, soon after the tenth constitutional amendment that ended decades of dictatorship in South Korea, passed the Constitutional Court Act (Korean: 헌법재판소법), which spells out a detailed organizational structure of the Court, establishes the hierarchy of judicial officers and their roles within the Court, and most importantly, provides ways in which people of Korea can appeal to the Court. Unlike other constitutional courts (most notably Federal Constitutional Court of Germany), a party may file a constitutional complaint directly with the Court, without having to exhaust all other legal recourse, when a particular statute infringes upon his or her constitutional rights.
Although the Constitutional Court and the Supreme Court are treated as coequal (see Article 15 of the Constitutional Court Act[2]), the two courts have persistently come into conflict with each other over which of them is the final arbiter of the meaning of the Constitution. The Supreme Court, which is supposed to be the court of last resort, has criticized the Constitutional Court for attempting to upend the "three-tiered trial" system—referring to the conventional practice of allowing appeals up to twice—and placing itself above the Supreme Court. In 2022, the relationship between the two high courts seemingly came to a head when the Constitutional Court overturned a Supreme Court decision without declaring the relevant statute unconstitutional, holding that the statute itself does not violate the Constitution but its particular application does. The Supreme Court publicly denounced the ruling, saying that it entails the unacceptable implication that the ordinary courts' decisions fall under the Constitutional Court's jurisdiction, which subjugates the Supreme Court to the Constitutional Court.
The Constitutional Court of Korea is the seat of the Permanent Secretariat for Research and Development of the Association of Asian Constitutional Courts and Equivalent Institutions.
Status[edit]
The current judicial system of South Korea, especially the Constitutional Court of Korea, was influenced by the Austrian judicial system.[8] While Austria has three apex courts, whose jurisdiction is defined in different chapters of the Austrian constitution,[9] the Constitution of South Korea[10] only establishes two apex courts. Ordinary courts with the Supreme Court of Korea at the top is established by Article 101(2) under Chapter 5 'Courts' (Korean: 법원), while the Constitutional Court of Korea is the one and only highest constitutional court established by Article 111(1) Chapter 6 'Constitutional Court' (Korean: 헌법재판소).
The drafters of the Constitution tried to emphasize that the Constitutional Court does not belong to the ordinary-court system by using different but synonymous words. The term 'jaepanso (Korean: 재판소; Korean pronunciation: [tɕɛpʰanso])', meaning court, was used to describe the Constitutional Court, while 'beobwon (Korean: 법원; Korean pronunciation: [pʌbwʌn])' was used to represent the ordinary courts. The equal status of the Constitutional Court and the Supreme Court is guaranteed by Article 15 of the Constitutional Court Act, which states that the President and the Associate Justices of the Constitutional Court should be treated the same as the Chief Justice and the Associate Justices of the Supreme Court, respectively.[11]
Composition[edit]
Justices[edit]
Article 111 of the Constitution of the Republic of Korea stipulates the size of the Constitutional Court and the nomination and appointment procedure for its Justices.[10] The Court is composed of nine Constitutional Court Justices (Korean: 헌법재판소 재판관), and the President of South Korea formally appoints each Justice.[10] However, Article 111(3) of the Constitution divides the power to nominate persons for appointment into equal thirds among the President, the National Assembly, and the Chief Justice of the Supreme Court of Korea.[10] Thus, the President has the power to both nominate and appoint three of the Constitutional Court's nine Justices, but the President must appoint the remaining six Justices from persons selected by the National Assembly or the Chief Justice of the Supreme Court. This appointment structure reflects the civil law tradition of regarding ordinary courts as heart of conventional judiciary, since the President of South Korea represents executive branch, and the National Assembly represents legislative branch, while the Supreme Court Chief Justice represents judicial branch of the South Korean government. However, it is clear that both the Supreme Court and the Constitutional Court generally regard the power of the Constitutional Court as essentially a kind of judicial power.[12]
In order for a person to be appointed as a Constitutional Court Justice, Article 5(1) of the Constitutional Court Act requires that the person must be at least 40 years old, qualified as attorney at law, and have more than 15 years of career experience in legal practice or legal academia.[11]
While exact internal procedure for the nomination of Constitutional Court Justices is not stipulated by statutes, nomination of the three Justices from the National Assembly is usually determined by political negotiations between the ruling party in the Assembly and the first opposition party. The second opposition party also plays a role in this process when it has sufficient membership in the Assembly. When the second opposition party does not have sufficient membership in the Assembly to formally participate in nomination process, the ruling party nominates one Justice, and the first opposition party nominates another. The remaining nomination is shared between the two parties, decided by negotiation or by election when the negotiation fails. For example, former Justice Kang Il-won was nominated by the National Assembly according to negotiations between the ruling Saenuri Party and the first opposition Democratic United Party in 2012. When the second opposition party is big enough to formally participate in the appointment process, it nominates the third Justice. Current Justice Lee Young-jin is example of Justice nominated from the National Assembly by the second opposition party; the Bareunmirae Party nominated him in 2018.
Notably, Article 6(2) of the Constitutional Court Act states there should be "confirmation hearings of the National Assembly" (Korean: 국회 인사청문회) for all Constitutional Court Justices before appointment or nomination.[11] However, this procedure has been interpreted as non-binding where the Constitution itself does not require the National Assembly's confirmation or consent for the nomination or appointment.[13] Thus, the National Assembly cannot use the confirmation hearing process to block the nominations advanced by the President or the Chief Justice of the Supreme Court, or the President's appointment of such nominees.
Emblem of the Constitutional Court of Korea (1988–2017)
Flag of the Constitutional Court of Korea (1988–2017)
Flag of the Constitutional Court of Korea (from 2017)
