Development and Current Situation of the Constitutional Adjudication in Korea

Abstract

After having gone through the inactive and sometimes merely ornamental forms

of constitutional adjudication systems such as the Constitutional Committee or the

American type judicial review system in the past, the Republic of Korea finally

established the Constitutional Court in 1988. And, different from its predecessors,

the Constitutional Court has been known for its active and successful performance

in adjudicating constitutional matters, as the last resort of upholding the

Constitution and protecting fundamental rights of the citizens.

However, there are also some obstacles that should be hurdled by the Court,

such as the issues related to its competence and jurisdiction, including lack of

jurisdiction over the election disputes, lack of competence of constitutional review

of statutory legislation in abstracto and no power to adjudicate the constitutional

complaint against ordinary courts judgments, and the issues related to the process of nomination and appointment and term of Justices. In order to solve these problems, the Constitutional Court must examine in depth these issues and make necessary improvements.

This paper reviews 1) the institutional foundations of constitutional review in

Korea, including current constitutional adjudication model and historical and legal

reasons for its adoption and relations between the Constitutional Court and

ordinary courts; 2) status and composition of the Constitutional Court of Korea,

including qualifications, terms of Justices, possibility of their reappointment,

procedure for nomination and appointment of Justices and guarantee of their

independence; 3) jurisdictions of the Constitutional Court such as constitutional

review of statutory provisions, adjudication on constitutional complaint, adjudication on competence disputes between state agencies, between state agency and a local government or between local governments, adjudication on the dissolution of political party and adjudication on the impeachment of high public officials; and 4) binding effect of the Courts decisions on the Legislature, the ordinary courts and on the Executive. Also, in its last part, this paper introduces several important cases in practice concerning civil liberties, social rights in pursuit of social justice, other fundamental rights and principle of equality for protecting women or particularly vulnerable minorities.