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Jurisdiction

Adjudication on the Constitutionality of Statutes
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  • Purpose

    Adjudication on the constitutionality of statutes is an adjudication system which nullifies the statute that has been found unconstitutional by 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 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 includes 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 statute 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 statues, the court’s written request 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 it 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

    The Constitutional Court 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 become 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 unconstitutional or constitutional. 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 be ineffective from the day on which the decision is made. The statute or provision thereof relating to criminal punishment shall be ineffective retroactively and lose the effect retroactively to the day after it was declared for an adjudication case that the statute or provision concerned was constitutional. In cases 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.

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