Constitutional Court

The Constitutional Court (헌법재판소/憲法裁判所) is committed by the Constitution to decide whether the laws at legal dispute or government actions imposing duties or infringing individual rights are constitutional or not. (Article 111(1) of the Constitution) This kind of constitutional controversies are not resolved by lower courts. They are resolved by the competent judiciary by determining constitutional consistency of a regulation or a government action, namely the Constitutional Court.

In specific cases, there can be disputes between government bodies or between government and individual, on constitutional consistency of an action or inaction. The role of the Constitutional Court is to untangle these disputes to ensure constitutionality of public authority and protect fundamental rights of individuals.

To look into what cases the Constitutional Court has dealt with, you need to visit the Case Statistics of the Constitutional Court as of the latest month of the year.

Key words
Constitutional Court, constitutionality, judiciary, government action, adjudication

History and Background
Although the competent judiciary may vary from historical backgrounds or political situations, the systems generally fall under two categories: #1 constitutional courts or constitutional committees of separate character from ordinary courts; and #2 supreme courts.

Countries adopting the type #1 are Germany, Austria, Italy, France and so on, whereas the U.S. and Japan have the type #2. Korea had adopted the type #1 since the Constitution was amended on October 29, 1987. As a result, the Constitutional Committee established in 1980 was replaced by the Constitutional Court composed of nine Justices. The Constitutional Court is seated at a time-honored village "Bukchon (Northern Village)" and provides a tour program to the the public.

Difference between Constitutional Court and Ordinary Court
To begin with a civil dispute - a loan agreement for example whereby the dispute of default or calculation is at hand - a court has to establish the existence of mutuum, and award damages in the amount of the principal and overdue interests. In such a case, the provision levying overdue interests cannot be challenged to avoid its application, even if the provision contains blatant error. Only by challenging laws through judicial review can such laws be nullified, the process of which is called the 'Constitutionality Review'.

Basically the same occurs in criminal and administrative cases. The Constitutional Court seeks fundamental dispute resolutions by reaching beyond automatic application of ordinary courts and deciding upon the constitutionality of challenged provisions. Moreover, while ordinary court decisions only bind parties to the dispute, 'Constitutionality Reviews' have erga omnes (with regard to all) binding force when a provision is declared unconstitutional.

Organization
See the Organization of the Constitutional Court.

Powers
The 'Constitutionality Review' finds unconstitutionality in laws enacted by the legislature, and nullifies statutes when such unconstitutionality is found.

The 'Impeachment' orders dismissal or removal of high-ranking public officials from office by special process of indictment, when their special status and violations of Constitution or other statutes make ordinary criminal and disciplinary proceedings ineffectual.

The 'Dissolution of Unconstitutional Political Parties' is a means to disband political parties when their purposes or activities are contrary to the fundamental democratic order.

The 'Resolution of Competence Disputes' clarifies the competence and jurisdictional boundaries of state agencies and other entities exercising public power in relation to one another.

The 'Constitutional Complaints' provide a way for individuals to seek relief in case their constitutional rights have been violated by state power.

The 'Election Lawsuits' - in which the validity of the electoral process or the outcome of presidential election, election of National Assembly members, and election of heads of local governments is in question - was generally categorized under constitutional court jurisdiction, but today ordinary court has the jurisdiction.

Jurisdiction
Under the Constitution and the Constitutional Court Act, the Constitutional Court shall have the jurisdiction as follows:

Purpose
Adjudication on the constitutionality of the statutes (위헌법률심판) is an adjudication system which nullifies the statute that has been found unconstitutional by the review of the Court. It is a core component of constitutional adjudication, which secures checks-and balances mechanism against the legislative branch for the purposes of protecting the Constitution.

Causes for Request
When the issue of whether or not statutes are constitutional is relevant to the judgment of the original case, the ordinary court may request to the Constitutional Court, ex officio or by decision upon a motion by the party, adjudication on the constitutionality of statutes. The subject of adjudication on constitutionality include formal statutes legislated by the National Assembly, as well as emergency presidential orders, treaties, and universally accepted international laws.

Request Procedure
The request on adjudication on unconstitutionality of statutes can be made by individual ordinary courts, but they must go through the Supreme Court.

Should an individual wish to submit a motion to the ordinary court for request of a constitutional review, the motion must specify: indication of the case and the parties; the statute or any provision of the state which is interpreted as unconstitutional; bases on which it is interpreted as unconstitutional; and other necessary matters.

The court's decision to accept or dismiss the case is final, and the individual cannot appeal. When an ordinary court requests to the Constitutional Court an adjudication on the constitutionality of statutes, the court's written requests to the Constitutional Court shall include the following matters: indication of the requesting court; indication on the case and the parties; the statute or any provision of the statute which is interpreted as unconstitutional; bases on which it is interpreted as unconstitutional; and other necessary matters.

Suspension of Proceedings, etc.
When an ordinary court requests to the Constitutional Court adjudication on the constitutionality of statutes, the proceedings of the court shall be suspended until the Constitutional Court makes a decision: Provided, that if the court deems as urgent, the proceedings other than the final decision may proceed.

Opinions of Parties, etc. to Litigious Case
The parties to the original case and the Minister of Justice may submit to the Constitutional Court an amicus brief on the issue of whether or not statutes are constitutional.

Decision of Constitutionality and its Effect
If the Constitutional Court finds that the request for review has its reason, it will decide whether or not the requested statute or any provision of the statute is unconstitutional: Provided, that if it is deemed that the whole provisions of the statute becomes unenforceable due to a decision of unconstitutionality of the requested provision, a decision of unconstitutionality of the statute as a whole may be made.

Depending on the content of the statute, the Constitutional Court may decide on the case as nonconforming to the Constitution, unconstitutional in part, constitutional in part, as well as constitutional or unconstitutional. The Constitutional Court shall serve an authentic copy of the written decision on the requesting court within 14 days from the day of decision.

Any statute or provision thereof decided as unconstitutional shall lose its effect from the day on which the decision is made: Provided, that the statutes or provisions thereof relating to criminal penalties shall lose their effect retroactively. In case referred to in the proviso, a retrial may be allowed with respect to a conviction based on the statutes or provisions thereof decided as unconstitutional. Any decision that statutes are unconstitutional shall bind the ordinary courts, other state agencies and local governments.

Purpose
The Constitutional complaint (헌법소원) is an adjudication system where anyone whose basic rights guaranteed under the Constitution has been infringed upon by the governmental power, can file a constitutional complaint.

Anyone, including judicial persons may file a constitutional complaint. Unlike other adjudications of the Constitutional Court, where the National Assembly, executive branch, or ordinary court is the claimant, the individual citizen becomes the claimant in constitutional complaint, and it aims to directly relieve the person from violation of basic rights. Therefore, constitutional complaint is the core of our systematic mechanisms to assure basic rights.

With the introduction of the constitutional complaint system, Korean democracy took an important step forward; it also has contributed to the revitalization of constitutional adjudication system.

Types and Causes for Request
Any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint, except the judgments of the ordinary courts, to the Constitutional Court: Provided, that if any relief process is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes.
 * Constitutional Court Act Article 68-1

Since the legislative power of National Assembly is also a public power, a case where a statute that directly infringes upon the basic rights is legislated, or where the rights are infringed by the neglects of legislature by not enacting law which is mandated to be legislated, is also a subject of the constitutional complaint.

If the motion made under Article 41-1 for request of adjudication on constitutionality is rejected, the party may file a constitutional complaint with the Constitutional Court. In this case, the party may not repeatedly move to request for adjudication on the constitutionality of statutes for the same reason in the procedure of the case concerned.
 * Constitutional Court Act Article 68-2

Time Limit for Request
A constitutional complaint under Article 68(1) shall be filed within ninety days after the existence of the cause is known, and within one year after the cause occurs: Provided, that a constitutional complaint to be filed after taking prior relief processes provided by other laws, shall be filed within thirty days after the final decision in the processes is notified.

The adjudication on a constitutional complaint under Article 68 (2) shall be filed within thirty days after a request for adjudication on constitutionality of statutes is dismissed.

Filing Procedure
A constitutional complaint under Article 68 (1) shall be filed with: indication of the case; the violation of statute or any provision of the state which is interpreted as unconstitutional; the causes for violation including exercise and non-exercise of governmental power; reason for filing complaint; and other necessary matters.

A constitutional complaint under Article 68 (2) shall be filed with: indication of the case; the case in question and the indication of individual; a statute of the state which is interpreted as unconstitutional; reason for such interpretation; and other necessary matters.

The filing document must contain a certificate of nomination of a counsel, or application for a court-appointed counsel.

Prior Review
When a constitutional complaint is filed, the Panel conducts a prior review. In case of any of the followings, the Panel shall dismiss a constitutional complaint with a decision of unanimity:
 * the constitutional complaint is filed without having exhausted all the relief processes provided by other laws, or is directed against the judgment of the ordinary court (except for cases in which the court applied the laws that the Constitutional Court declared as unconstitutional);
 * a constitutional complaint is filed after expiration of the time limit prescribed in Article 69;
 * a constitutional complaint is field without a counsel, or the court-appointed counsel;
 * a constitutional complaint is inadmissible and the inadmissibility cannot be corrected.

When a Panel cannot reach a decision of dismissal with unanimity in 30 days, it shall transfer the constitutional complaint to the Full Bench.

When a dismissal is not decided within 30 days after requesting the adjudication on constitutional complaint, it shall be deemed that a decision to transfer it to the Full Bench is made.

Presentation of Opinions by Interested Agencies
State agencies or public organizations which have an interest in adjudication on a constitutional complaint, and the Minister of Justice may present to the Constitutional Court an amicus brief on the adjudication.

When a constitutional complaint prescribed in Article 68-2 is transferred to the Full Bench, the provisions of Articles 27-2 and 44 shall apply mutatis mutandis to it.

Content of the Adjudication
There are three types of decisions in the final judgment of the Constitutional Court; rejection, dismissal and upholding a case. Rejection is made when the request of adjudication does not have a rationale behind the request; 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 Constitution, if a request of adjudication was found to have rationale, the Constitutional Court must specify the exercise or nonexercise of government power that infringed basic rights.

In this case, if the Constitutional Court finds that the cause of such infringement was from the laws or statutes, the Court may hold the statute unconstitutional. Provided, if the unconstitutionality of a clause makes the whole statute unenforceable, the Court may announce the whole statute unconstitutional.

Effect of Decision of Unconstitutionality
In case of Article 68-1 of the Constitution, the upholding decision shall bind the ordinary courts, other state agencies and local governments. In particular, when a decision of upholding was made against the non-exercise of governmental power, the respondent must take new action in accordance with the decision.

Regarding Article 68-2 of the Constitution, the upholding decision shall bind the ordinary courts, other state agencies and local governments. Any statute or provision thereof decided as unconstitutional shall lose its effect from the day on which the decision is made; provided, that the statutes or provisions thereof relating to criminal penalties shall lose their effect retroactively.

When the constitutional complaint under the 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 provisions thereof decided as unconstitutional, whether criminal, civil, or administrative.

In addition, because the statutes of provisions relating to criminal litigation lose their effect retroactively, a person convicted based on a statute held as unconstitutional may claim a retrial, even if the case is not related to the constitutional complaint.

Purpose
When conflicts (권한쟁의) arise between state and local governments and agencies about the duties and authorities of each institution, it not only endangers the principle of checks and balances between public powers, but also risks paralyzing an important government functions. This may pose a threat to the basic rights of citizens, which calls for a systematic coordinating mechanism. The Constitution has endowed the Constitutional Court the jurisdiction on the adjudication on competence disputes, as part of a function to safeguard the Constitution.

Classification of Adjudication on Competence Disputes

 * Adjudication on competence dispute between the National Assembly, the Executive, ordinary courts and the National Election Commission;
 * Adjudication on competence dispute between the Executive and the Special Metropolitan City, Metropolitan City, Province or the City/County; or
 * Adjudication on competence dispute between the Special Metropolitan City, Metropolitan City, Province or the City/County of Self-governing District.

Procedures
The claimant may request adjudication on competence, if the respondent's action or inaction of which the competence or scope is in controversy, infringes or is clearly in danger of infringing the rights conferred to the claimant by the Constitution or the statute.

The written request for adjudication on competence dispute shall include the following matters: indication of the respondent's action or inaction which is the subject matter of the adjudication; reasons for the request; and other necessary matters.

The adjudication on competence dispute shall be requested within 60 days after the existence of the cause is known and within 180 days after the cause occurs.

Decision and Effect of Decision
The content of the decision concerns the interested parties' existence or scope of the competence of a state agency or local government. In the case as referred to in the previous sentence, the Constitutional Court may nullify an action of the defendant which was the cause of the competence dispute or may confirm the invalidity of the action, and when the Constitutional Court has rendered a decision upholding the request for adjudication against an omission, the respondent shall take a disposition in pursuance of the purport of decision.

The decision on competence dispute by the Constitutional Court shall bind all state agencies and local governments. The decision to nullify an action of a state agency or a local government shall not alter the effect which has already been given to the person whom the action is directed against, in order not to cause confusion.

Purpose
The Constitutional Court has exclusive jurisdiction over impeachment (탄핵) proceedings brought against certain high-ranking public officials. In general, impeachment motion is done by the National Assembly; in bicameral countries it is conducted by the upper house, and some countries have a separate Court of Impeachment, but the Korean Constitution endowed exclusive jurisdiction over impeachment to Constitutional Court.

Prosecution and Procedure of Impeachment
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, Chairman of commissioners of the Board of Audit and Inspection, or other public officials designated by the law violate the Constitution or other laws in the performance of official duties, the National Assembly may pass a motion for impeachment.

The impeachment prosecutor shall request adjudication by presenting to the Constitutional Court and authentic copy of the written resolution of the institution of impeachment. No person against whom a resolution of institution of impeachment. No person against whom a resolution of institution of impeachment is passed shall exercise his or her power until the Constitutional Court makes a decision thereon.

Procedure
Impeachment adjudication proceeds with the hearings. If the party is not present on the day of the hearings, the date must be reassigned. If the party fails to be present on the reassigned date, the hearing may proceed without the defaulting party.

Effect of Decision
When a request for impeachment is upheld, the Constitutional Court shall pronounce a decision that the accused person be removed from public office. The decision of impeachment does not excuse the official from civil or criminal responsibility. An impeached official cannot become a public official within 5 years.

Purpose
If the objectives or activities of a political party are contrary to the basic order or democracy, the Executive may request to the Constitutional Court, upon a deliberation of the State Council, adjudication on dissolution of the political party (정당해산심판). This jurisdiction is assigned to the Constitutional Court for the purpose of protecting the Constitution form the destruction of the basic order of democracy by a political party, but also has a meaning of protecting political parties from the arbitrary decisions of the Executive.

Procedure
The Executive may file for adjudication on dissolution of a political party when it decides the purposes or activities of a political party are harmful to the basic order if a democratic society. The written request for adjudication on dissolution of a political party shall include an indication of the political party requested to be dissolved; and grounds of the request.

When adjudication on dissolution of a political party is requests, the President of the Constitutional Court shall notify the facts to the National Assembly and the National Election Commission and shall deliver the copy of the request to the respondent.

Effect of Decision
When a decision ordering dissolution of a political party is pronounced, the political party shall be dissolved. The decision is not only meant for confirmation, but has formative force. The Constitutional Court shall serve an authentic copy of the written decision on the Executive, and a duplicate to the National Assembly and the National Election Commission.

The dissolution of political party decision is executed by the National Election Commission, according to the Political Party Law. The Commission must eliminate registration of the political party and announce it to the public.

The assets of the dissolved political party are reverted to the National Treasury. It is prohibited to make a party that has similar principles to the dissolved party, or a substitute party, and no political party is permitted to use the name of the dissolved political party.