Constitutional Court of Korea

A constitutional complaint is a system where anyone whose basic rights guaranteed under the Constitution have been infringed upon by public authorities may seek relief by filing a complaint to the Constitutional Court. Both natural person and juridical person may lodge a constitutional complaint. While in other adjudications of the Court jurisdiction, the National Assembly, Administration, ordinary courts or local governments are the claimants, an individual becomes the claimant in a constitutional complaint to pursue direct remedy for basic rights infringement. Therefore, it is one of key mechanisms to assure the basic rights. With the introduction of the constitutional complain, democracy took an important step forward, and it also has contributed to promoting constitutional adjudications.

Types and Causes for Request

Constitutional Court Act Article 68-1

Any person whose basic rights guaranteed by the Constitution is infringed upon by exercise or non-exercise of the public authorities, excluding judgment of ordinary courts, may file a constitutional complaint with the Constitutional Court: if any remedy is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes.
The legislative power of the National Assembly is also a public power. Thus, a statute or non-exercise of power by the legislature that directly infringes upon the basic right is also subject to a constitutional complaint.

Constitutional Court Act Article 68-2

If the motion made under Article 41 (1) for adjudication on the constitutionality of statutes is denied, the party may file a constitutional complaint with the Constitutional Court. In this case, the party shall be precluded from filing a motion to request for review on the constitutionality of statutes for the same cause in the proceedings of the original case.

Time Limit for Filing

A constitutional complaint under Article 68-1 shall be filed within 90 days after the existence of the cause is known, and within one year after the cause occurs. If a remedy process according to other statutes has taken place, however, the constitutional complaint shall be filed within 30 days after the notification of the final decision. A constitutional complaint under Article 68-2 shall be filed within 30 days after receipt of the decision that a request for adjudication on constitutionality of statutes is dismissed.

Filing Procedure

A motion for a constitutional complaint under Article 68-1 shall include: the claimant and legal counsel; the basic right which has been allegedly infringed; the causes for infringement including exercise and non-exercise of the governmental power; reason for filing the complaint; and, other necessary matters. A motion for a constitutional complaint under Article 68-2 shall include: the claimant and legal counsel; the case in question and the parties; a statute or provision which is interpreted as unconstitutional; reason for such interpretation; and, other necessary matters. The motion must include a certificate of appointing a legal counsel or application for a court-appointed counsel.

Prior Review

When a constitutional complaint is filed, one of the Panels consisting of three Justices conducts a prior review. In case of any of the followings, the Panel shall dismiss the motion with a decision of unanimity: the constitutional complaint is filed without having exhausted all the remedy 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; a constitutional complaint is filed without a counsel, or the court-appointed counsel; a constitutional complaint is inadmissible and the inadmissibility cannot be corrected. When the Panel does not reach a unanimous decision of dismissal, it shall decide to refer the motion to the Full Bench. When a dismissal is not decided within 30 days after request of adjudication on the constitutional complaint, it shall be deemed that a decision to transfer it to the Full Bench is made.

Presentation of Opinions

State agencies, public organizations that have an interest in adjudication on a constitutional complaint or the Ministry 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 party and Ministry of Justice can submit to the Court an amicus brief on the adjudication.

Decision

Three types of decisions are made by the Constitutional Court; rejection, dismissal and upholding. Rejection is made when the request of adjudication does not have rationale; 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 Constitutional Court Act, if a request of adjudication was found reasonable, the Constitutional Court shall specify the infringed basic right and exercise or non-exercise of the governmental power that caused such infringement before cancelling the governmental power or holding such non-exercise unconstitutional. If the Court attributes the exercise or non-exercise of the governmental power to the statutes or provisions concerned, it can declare them unconstitutional. If a request of adjudication was found reasonable according to Article 68-2 of the Constitution Court Act, the Court shall declare the concerned statute or provision unconstitutional. If the unconstitutionality of a provision makes the whole statute unenforceable, the Court may announce the whole statute unconstitutional.

Effect of Decision

The Court’s upholding decision on the constitutional complaint filed according to Article 68-1 shall bind all state agencies and local governments. When the Constitutional Court upholds the constitutional complaint against non-exercise of the public authorities, the respondent shall make a disposition pursuant to the purport of the decision.
The Court’s upholding decision on the constitutional complaint filed according to Article 68-2 shall bind all ordinary courts, state agencies and local governments. The statute or provision found unconstitutional shall lose its effect from the date of the decision. When the constitutional complaint under 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 any of the provisions decided unconstitutional, whether criminal, civil or administrative. As a ruling of unconstitutionality regarding statute or provision on criminal penalties has effect retroactively, a person convicted based upon such a statute or provision may claim a retrial.