Symposium: A Successful Constitutional Design: The Constitutional Court at 30

Fabian Duessel

Asian Association for Constitutional Courts and Equivalent Institutions

The Constitutional Court of the contemporary Sixth Republic of Korea was established in 1988, following amendments to the Constitution in 1987. This was the first time a centralized system of constitutional review in the form of a constitutional court was established in Korea. Even though a constitutional court was envisaged in Chapter VIII of the 1960 Constitution, it never came into being due to the short history of the Second Republic of Korea (1960-1961). The current Constitutional Court having reached its 30th anniversary is thus a significant milestone. Since its establishment, a total of over 33,000 cases have been filed with the Constitutional Court of Korea. The following short introduction aims to give an overview of the Court’s composition, jurisdictions and international presence.

Judicial appointment to the Constitutional Court of Korea follows the representation model and is regulated by Articles 111(2) and 111(3) of the Constitution. Article 6 of the Constitutional Court Act (CCA) sets out in detail the appointment process. Even though all nine Justices of the Constitutional Court of Korea are appointed by the President of the Republic, three are elected by the National Assembly and three are nominated by the Chief Justice of the Supreme Court (see Article 6(1) CCA). This model of appointment aims to ensure the representative nature of the institution, allowing the executive, the legislature and the ordinary judiciary to provide input into the composition of the Constitutional Court. Such a system of constitutional court appointment also exists in Europe, for example at the Constitutional Court of Italy.  

Some constitutional courts in Asia also follow similar methods of appointment. The Constitutional Court of Mongolia (established in 1992) and the Constitutional Court of Indonesia (established in 2003) also respectively consist of nine Justices, with the power of appointment also divided between the respective three branches of government. However, despite these similarities, differences exist when it comes to the appointment of the head of the respective constitutional courts. For example, while the President of the Constitutional Court of Korea is appointed by the President of the Republic with the consent of the National Assembly (see Article 111(4) of the Constitution), the Chief Justice of the Constitutional Court of Indonesia is elected from among and by the Justices of the Constitutional Court (see Article 4(3) of the Law of the Republic of Indonesia Concerning the Constitutional Court).  

Article 111(1) of the Constitution of the Republic of Korea enumerates the jurisdictions of the Constitutional Court of Korea. They consist of the following five powers: to review the constitutionality of a law upon the request of the courts; to rule on motions of impeachment; to dissolve a political party; to resolve competence disputes between state agencies, between state agencies and local governments, and between local governments; and to decide on constitutional complaints. Details on the operation of each jurisdiction can be found in the relevant provisions of the Constitutional Court Act (CCA). It is no surprise that the Constitutional Court of Korea possesses two of the primary jurisdictions usually expected of a constitutional court. These are the constitutional review of legislation (Articles 41-47 CCA) and the resolution of competence disputes (Articles 61-67 CCA). Interestingly, the Korean system of constitutional review only allows concrete review. Abstract constitutional review is currently not permitted.

The jurisdiction of the Constitutional Court of Korea concerned with impeachment is the final and binding part of a longer process, which is initiated by the National Assembly (see Articles 48-54 CCA). For a comparative perspective, any ruling of presidential impeachment by the Constitutional Court of Indonesia, for example, is not final. The final stage of the impeachment procedure in Indonesia rests with Indonesia’s legislature (see Articles 7B and 24C(2) of the Constitution of Indonesia, and Articles 80-85 of the Law of the Republic of Indonesia Concerning the Constitutional Court). In Korea, the only decision where the Constitutional Court confirmed the constitutionality of a presidential impeachment took place in 2017 (2016Hun-Na1, March 10, 2017). Similarly, the power of party dissolution (Articles 55-60) has so far also only been exercised once by the Constitutional Court of Korea (2013Hun-Da1, December 19, 2014).

The last constitutional jurisdiction listed in Article 111(1) of the Constitution of the Republic of Korea is constitutional complaint (see Articles 68-72 CCA). This mechanism is similar to the German Constitutional Court’s full constitutional complaint system, but there are some major differences. For example, the wording of Article 68(1) CCA makes it clear that unlike in Germany, a constitutional complaint is generally not permitted against judgements of the ordinary courts. Also, in addition to the procedure stipulated in Article 68(1) CCA, another type of constitutional complaint is available via Article 68(2) CCA. This latter provision states the following: “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.” This additional type of constitutional complaint broadens individual access to constitutional justice in the Republic of Korea.

The Constitutional Court of Korea is also internationally active. In 2014, the Constitutional Court of Korea hosted the 3rd Congress of the World Conference on Constitutional Justice (WCCJ) in Seoul. The Republic of Korea is a full member of the Venice Commission since 2006, and therefore the Constitutional Court of Korea has actively contributed to studies and reports of the Venice Commission, such as the recent “Report on Term-Limits, Part I – Presidents”, which was published on 20 March 2018. The Constitutional Court of Korea is a founding member of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). This judicial network consists of constitutional adjudicatory bodies from 16 Asian countries. In 2016, the AACC decided to establish a Secretariat for Research and Development (SRD). The AACC SRD as an organization is hosted by the Constitutional Court of Korea and officially opened its office in Seoul in 2017. In May 2018 it held its first research conference under the theme of “Jurisdictions and Organization of AACC Members”.

Fabian Duessel is one of the Deputy Directors of the Secretariat for Research and Development (SRD) of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). Prior to joining AACC SRD, he was a research fellow at the University of Tuebingen, Germany. The views expressed in this blog entry are solely the views of the author in his private capacity, and should neither be attributed to AACC SRD nor to the Constitutional Court of Korea.