Some Problems with the Korean Constitutional Adjudication System

Abstract

Despite its very short history, the Korean Constitutional Court has been successful in carving out its position as the bastion of the Constitution and human rights. However, it now faces the more difficult task of consolidating its identity as such. This task requires not only more activist efforts on the part of the Court itself but also institutional reforms. Indeed, the relatively active performance of the Court over the last decade has veiled certain institutional defects of the present adjudication system. For the further development of the Korean constitutional adjudication system, these defects must be corrected not only by

constitutional and statutory interpretation but also by revision of the relevant provisions of the Constitution and the Constitutional Court Act.

This essay examines major institutional problems requiring constitutional and statutory revision and provides alternative proposals. Three kinds of problems will be looked into in this essay: (1) those requiring both constitutional and legislative revision; (2) those requiring the adoption of new legislative devices; and (3) those requiring only legislative revision. The first category includes (1) expansion of the

Court jurisdiction, (2) reform in the composition of the Court, (3) changes in the quorum of judgement, and (4) problems of the separation of the power of constitutional review between the Court and the Supreme Court. The second category includes (1) measures to address the weak binding force of the Court decisions, (2) the lack of general procedures for provisional remedies or injunctions, (3) the statutory base for modified decision of unconstitutionality. The third category is concerned with (1) mandatory representation by attorney and (2) exclusion of ordinary courts' judgements from

constitutional complaint.