What kind of constitutional adjudications are there?
According to Article 111 paragraph 1 of the Constitution, the Constitutional Court has jurisdictions over:
1) constitutional review of the statutes;
2) impeachment of governmental officials;
3) dissolution of a political party;
4) competence dispute between branches of central or local governments; and
5) constitutional complaint.
Is the Constitutional Court the Court of last resort in Korea?
When a party in an ordinary court proceeding files a motion to transfer to the Constitutional Court for a judgment on the constitutionality of an applicable law on the case, and, subsequently, the motion is denied by the same court, the party may seek recourse in the Constitutional Court to for a final judgment on the constitutionality of the law at issue.
Procedures of Requesting for Adjudication
How can I file a petition?
You can file a petition 24 hours a day. After regular office hours, you can file it with night clerk's room. No petition may be rejected at a filing stage unless a clerk finds the petition grossly out of formality. In that case, the petition can be resubmitted after corrections. Also, you can file a petition with a mail. If you file it with a certified mail, you will not receive a receipt. The petition for constitutional complaints alone, the number of petitions filed with mail has increased up to 40% of the entire case.
How is the case number assigned?
Once a petition is filed, a case number with a case code is assigned. The case codes are:
1) Hun-Ka for constitutional review of statutes;
2) Hun-Na for the impeachment;
3) Hun-Da for dissolution of a political party;
4) Hun-Ra for Competence Disputes;
5) Hun-Ma for constitutional complaint (pursuant to Constitutional Court Act Article 68, paragraph 1;
6) Hun-Ba for constitutional complaint (pursuant to Constitutional Court Act, Article 68 paragraph 2; and
7) Hun-Sa for appointment of an counsel and preliminary orders. The number is preceded by the two-digit filing year and followed by a three digit serial number given in the order of filing in that year.
Can anybody file a petition for constitutional adjudication?
An ordinary court may file a petition for constitutional review of statutes. The National Assembly has the power to initiate the impeachment. The Government may bring an action for dissolution of political parties. A branch of central and local government may file a petition for competence. An individual may file a petition for constitutional complaint when his or her fundamental rights guaranteed by the Constitution was violated by the exercise or non-exercise of governmental power according to Article 68 paragraph 1 of the Constitutional Court Act. Under the Article 68 paragraph 2 of the Constitutional Court Act, When a party in an ordinary court proceeding files a motion to transfer to the Constitutional Court for a judgment on the constitutionality of an applicable law on the case and, subsequently, the motion is denied by the same court, the party may file a petition for a final judgment on the constitutionality of the law at issue.
What is the Mandatory Attorney Representation?
The Constitutional Court Act is the first court in Korea to adopt mandatory representation of legal counsel. When a branch of a central or a local government is a party to a case, it should hire an attorney or a public officer who is qualified as an attorney, as its representative. When an individual is a party, he or she should be represented by an attorney unless the individual is qualified as an attorney.
If I do not have money to hire an attorney, what should I do?
If you do not have money to hire an attorney, you can request one appointed by the Court. In order to request an appointment, you must submit in writing a proof of your financial inability to hire a lawyer.
How much does it cost to file a petition with the Constitutional Court?
The state will bear the expenses of the constitutional adjudications. However, the requesting party may have to pay for expenses arising from the investigation of evidence pursuant to the Constitutional Court Act. In constitutional complaints, the Court may order the petitioner to deposit a sum of money as prescribed in the Constitutional Court Act.
How are cases accepted by the Constitutional Court?
Under the article 22 paragraph 1 of Constitutional Court Act, constitutional adjudication will be assigned to a full bench composed of all 9 Justices as a rule. However, when you file a petition for constitutional complaint, the Court establishes a "Small Bench," to determine whether the petition for constitutional complaint is valid enough to be heard by the Court. A Small Bench is composed of three Justices of the Constitutional Court. To determine the validity of the petition, a unanimous decision is required.
For a Full Bench, does it require the presence of all Justices?
No, according to article 23 paragraph 1 of Constitutional Court Act, a Full Bench may convene with the attendance of seven Justices or more.
Do the Justices hear oral arguments?
Yes. Under the article 30, paragraph 1 of Constitutional Court Act, the Court hears oral arguments before it renders decisions on impeachment, the dissolution of a political party and the competence dispute. But, not very often, the Court hears oral arguments on the constitutionality of law and constitutional complaints. When a Full Bench finds it necessary to have a hearing on a case, it can do so and hear testimonies from parties, third parties, witnesses, and experts.
Is there time limit to file a petition for Constitutional Complaint?
Yes, you should file it within 90 days after the violation of fundamental rights is known and within 1 year after cause occurs. You should file the petition only if no other remedial measures are available under the law.
How can I check the status of my case?
Generally, all documents filed with the Court are public records and are available at a clerk's office although some documents are sealed by special court order and classified to be confidential under the law. The Court has an automated system that allows the search and retrieval of case-related information through the web site.
Closure of the Case
How long does it take before the Court renders a decision?
The Court reviews the petition and announces its ruling usually within 180 days from the filing. However, depending on the case, the duration may vary
Can I withdraw the petition?
Yes, you may withdraw your petition before the court announces its ruling. Once you withdraw, your case will be closed without respondent's consent and leaves the case undecided.
How does the decision come into effect?
The decision of unconstitutionality of a law has a binding force on all state agencies by immediately nullifying the law and even by retroactively applying in cases of criminal statutes.
Can I appeal the decision of the Constitutional Court?
The decision of the Constitutional Court is final and cannot be appealed.
Can I re-file the same case?
No, Under the Article 39 of the Constitutional Court Act, the Court shall not take the same case again on which a prior decision has already been made.
May the Court overturn precedents?
Yes, for example, On June 28, 2007, the Constitutional Court ruled that the election and voting regulation limiting voting rights of Koreans living abroad are unconstitutional, saying they infringe upon the people's right to vote and equality. This ruling reversed an earlier decision of constitutionality made eight years ago. Also, on August 30, 2007, the Court overturned the prior decision of constitutionality on "the Act on Civil Liability for Fire Caused by Negligence" and found it unconstitutional.
Are there any well-known cases?
Yes, the Constitutional Court ruled in 2005 that the current registry system, which requires children to have their father's last name, is a violation of the Constitution. From 2008, Korea will abolish the family registration system that only acknowledges male heads of the family. And the most well-known case is the ruling on the impeachment of President Roh (2004 Hun-Na 1). The Constitutional Court has decided to dismiss the impeachment bill approved by the National Assembly. A 5-4 ruling by the Justices would be sufficient to dismiss the impeachment bill for procedural errors, but six judges must concur for the impeachment to stand. At that time, the Constitutional Court was reeling from overwhelming public attention in the wake of the impeachment of President Roh Moo-hyun. Proponents and opponents of the action crowded into the court's web site with their opinions, and the press reported every step the nine Justices were taking.
What is the organizational structure of the Constitutional Court?
The Court consists of nine Justices, President of the Constitutional Court among the Justices, Department of Court Administration, Constitution Research Officers and Assistant Constitution Research Officers who investigate and research cases under the direction of the President of the Constitutional Court. There are also Constitution Researchers who specialized in research on many areas of the Constitution. They are selected from scholars most of whom have Ph.D, J.D, and S.J.D degrees.
What are the qualifications to become a Justice?
To be a Justice of the Constitutional Court, one shall be forty or more years of age and be in any of the following positions for fifteen or more years.
(1) Judge, Prosecutor, or Attorney; or
2) Person who is qualified as an attorney and has been engaged in legal affairs on behalf of a governmental agency, a national or public enterprise, a government-invested institution or other corporation; or
3) Person who is qualified as an attorney and has been in a position higher than an assistant professor of law in a recognized college or university.
What is the term of a Justice?
The Article 112, paragraph 1 of the Constitution states, "The term of office of the adjudicators of the Constitutional Court shall be six years and they may be reappointed under the conditions as prescribed by law." According to the law, reappointment means starting a new term of an office after the first term expires. And the age limit for the Justices is sixty five. The President of the Constitutional Court, however, can sit until the age of seventy.
How are the Justices appointed?
Of the nine Justices, three are appointed by the President of the Republic, three are elected by the National Assembly, and three are designated by the Chief Justice of the Supreme Court. The President of the Constitutional Court is appointed by the President of the Republic with the consent of the National Assembly. All nine Justices are commissioned by the President of the Republic. Accordingly, Constitutional Court Justices are chosen by the Executive, the Legislature, and the Judiciary.
How does the Court warranty its political neutrality?
The Justices are appointed by the President of Korea. Of these, three are elected by the national assembly and three are nominated by the Supreme Court of Korea. (Article 6 Paragraph 1 of the Constitutional Court Act) In this way, all branches of government are represented in the process. The Justices are also guaranteed a renewable six-year term of office(Article 7 Paragraph 1), during which they cannot be involuntarily removed from office other than for two enumerated reasons; impeachment or being sentenced to imprisonment without labor or a heavier sentence. (Article 8) Furthermore, all Justices are prohibited from entering a political party or participating in political activities. (Article 9)
Other Institution of Consitutional Court
Does the Court make international relations?
The Constitutional Court is a member of the Venice Commission, an international organization of the Constitutional Courts, and actively participates in preparation work for a constant body of Asian Constitutional Courts. The Court jointly hosted the 5th Asian Conference of Constitutional Justices from Oct. 9 to 11, 2007 in Seoul. Such international cooperation promotes exchange of knowledge and jurisprudential experience between Courts and similar institutions with constitutional jurisdiction.
What role does the international and comparative law conference play in the Court's decision-making process?
Many constitutional issues before the Court deal with universal principles of a free and democratic society rather than legal technicalities that vary from legal system to legal system. The ways other societies have faced the same questions are always of interest to the Court, if not necessarily determinative in particular cases. Certainly, if there is a definite trend in jurisdictions regarding an issue, the Court will scrutinize the reasoning. Sometimes the Court will also draw from legal theories used in other Courts. The "division theory (Trennungstheorie)" developed in the German Federal Constitutional Court, for instance, now applies to the Court's property rights jurisprudence. Given the international legal environment, the Court is always willing to learn from the experiences of other jurisdictions and societies.
I want to watch a hearing of the Constitutional Court.
Anybody can attend the hearings of the Constitutional Court. The court announces its decision on the last Thursday of every month except in January and August. More information can be found at the web site where schedules are posted.
Is there any program for the disabled?
Since the second half of 2007, the Constitutional Court has made its major documents and publications available for the blind by using a software program which converts texts into voice with conversion bar codes attached to the documents. The first publication with this feature was "the Constitutional Court News 129" published on July 20, 2007. The Constitutional Court adopts this voice conversion feature in its English publications as well. The Constitutional Court also introduces this program technology at 2007 Asian Conference of Constitutional Judges and at 2008 International Conference of Chief Justices of the Constitutional Courts. In doing so, the Court will advocate for this technology to be known to the world and make available for everybody in need.
Can I visit the Constitutional Court?
The Constitutional Court has welcomed visitors since its opening on September 1, 1988. The Court offers tours to the Office of Public Service. No other tours of the building are available. For information on a tour of the Office of Public Service, please visit our website.
Where can I get information about the Constitutional Court?
The Constitutional Court has distributed various brochures and pamphlets in order to promote a better understanding of the Court's function. In May 1990, an English version of "The Constitutional Court" was published and reprinted several times. The major cases are translated into English and published in a booklet (also posted in the website) yearly.
Is the courthouse near any other well-known government buildings?
Yes, the Court is located near "the Blue House," (the Presidential House), the central government complex, the Board of Audit and Inspection and many of Seoul's historic buildings and neighborhood including Kyeong-bok-koong and Insa-Dong.