2016 Global Review of Constitutional Law

to maintain the equilibrium of power. Each
Justice serves a term of six years and can be
reappointed (Article 112(1)). 1 Six Justices’
concurrence is required for a decision on
unconstitutionality, impeachment, dissolution
of a political party, and constitutional
complaint (Article 113(1)). As of March 20,
the terms of two Justices expired: President
Han-chul Park left in January, and Justice
Jung-me Lee left in March. Although there
are only seven Justices for now, it is still
mandatory to obtain the concurrence of six
Justices to decide on unconstitutionality.
The Korean Constitutional Court has jurisdiction
over five matters: the constitutionality
of law, impeachment, dissolution of a political
party, disputes about the jurisdictions,
and constitutional complaint (Article 111).
The Court deals with the constitutionality of
a law and constitutional complaints most frequently.
There has been only one major case
on the dissolution of a political party: the
dissolution of the Unified Progressive Party
in December 2014. There were two cases of
impeachment. The first was against former
President Moo-hyun Roh in 2004, which
was overturned. The latter was against former
President Geun-hye Park in 2017.
The design of the Korean Constitutional
Court seems similar to that of Germany.
However, there are some structural differences
between the Korean Constitutional
Court and German Federal Constitutional
Court. First, unlike the German Federal Constitutional
Court, the Korean Constitutional
Court does not allow initiation of a constitutional
complaint regarding decisions made
by ordinal courts in Korea (Constitutional
Court Act, Article 68 (1)). Second, the Korean
Constitutional Court does not have the
authority to decide on the constitutionality
of the law if there is not a concrete lawsuit.
Third, in Korea, plaintiffs can directly initiate
a constitutional complaint in the Constitutional
Court to decide on the constitutionality
of the law if the ordinal court does not
send the case to the Constitutional Court,
despite the plaintiffs demand to do so.
In the Korean Constitutional Court,“the Principle
of Proportionality” is entrenched as a
criterion for Constitutional review in the field
of fundamental rights. 2 This principle was
derived from Article 37 (2) of the Constitution,
which decrees that “The freedoms and
rights of citizens may be restricted by the Act
only when necessary for national security, the
maintenance of law and order or for public
welfare.” The Justices examine four points:
“correctness of purpose,” “appropriateness
of procedure,” “minimality of damage,” and
“balance of benefit and protection of law.”
The Act becomes unconstitutional if the reviewed
Act violates any one of these points.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
There is also a difference in the binding of
decisions of the Korean Constitutional Court
and that of Germany. According to Article
31 (1) of the German Federal Constitutional
Court Act, “The decisions of the Federal Constitutional
Court shall be binding upon federal
and Land constitutional organs as well as on
all courts and administrative authorities.” 3 On
the other hand, Article 47 (1) of the Korean
Constitutional Court Act decrees, “Any decision
that an Act is unconstitutional shall be
binding upon courts, and other state agencies
and local governments.” Therefore, there are
controversies with respect to whether “Modified
Form of Decisions,” especially the decision
of limited unconstitutionality described
later, can be binding for courts and other state
agencies and local governments. 4
The forms of decisions of the Korean Constitutional
Court consist of constitutionality
and unconstitutionality as well as “Modified
Form of Decisions.” Modified form of decisions
is defined as various forms of decisions
given in cases where it is necessary to respect
the legislative and prevent disorder by
giving a decision of unconstitutionality despite
recognizing unconstitutionality of the
law. 5 There are three types of modified form
of decisions by the Korean Constitutional
Court: “Decision of Limited Constitutionality,”
“Decisions of Limited Unconstitutionality,”
and “Decision of Unconformity.”
Limited constitutionality is the decision that
pertains only to certain interpretations as
constitutional. Limited unconstitutionality is
the decision that considers that the concerning
laws can be unconstitutional depending
on their interpretation. 6 The decision of unconformity
is similar to the decision of unconstitutionality
but allows the concerning
act to be valid for a certain period. Currently,
decisions of limited constitutionality are not
given.
Since the Constitutional Court was established
after the Supreme Court, there have
been disagreements between the two courts.
For instance, since Article 47 (1) of the Constitutional
Court Act decrees that the decision
of unconstitutionality binds courts and
other state agencies and local governments,
the Supreme Court insists that the decision
of limited unconstitutionality by the Constitutional
Court cannot bind the ordinal courts
as the Constitutional Court is only allowed
to decide whether an act is constitutional and
specific interpretations of the act are the jurisdiction
of the Supreme Court. Essentially,
the Supreme Court still often applies the act,
which was already determined to be limited
unconstitutional. To solve these difficult situations,
the Constitutional Court decided that
1
The English version of the Constitutional Law of the Republic of Korea and the other Acts are available at the website of the Korea Legislation Research
Institute: http://elaw.klri.re.kr/kor_service/main.do accessed 29 March 2017
2
Byong-ro Min, “Current State and Tasks of Constitutional Review in Korea” in Hideyuki Ohsawa and Go Koyama (eds) American Constitution in East Asia
(Keio University Press 2006) p. 84 (in Japanese)
3
The English version of the German Federal Constitutional Court Act is available at the website of the German Federal Constitutional Court: http://www.
bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__blob=publicationFile&v=1 accessed 29 March 2017
4
Leo Mizushima, “Constitution-Compatible Interpretation in Comparative Perspective: Korea” (2017) 78 Comparative Law Journal p.90 (in Japanese)
5
Yong-Sung Kwon, Constitutional Law: A Textbook (Bobmun Sa 2010) p. 115 (in Korean)
6
Although the Korean Constitutional Court considers that decisions of limited constitutionality and unconstitutionality are substantially similar, some scholars
insist that the characteristics of both decisions are quite different. (e.g. Young Huh, Rules of Constitutional Litigation (Pakyoung Publishing 2006) pp.
181-185 (in Korean); Jong-sup Chong, Constitutional Litigation (Pakyoung Publishing 2006) p. 304 (in Korean))
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