Constitutional Review in South Korea

Introduction

Constitutional review in South Korea is exercised principally by the Constitutional Court of Korea (헌법재판소), established in 1988 under the 1987 Constitution. The Court adopts a centralized (Kelsenian) model of constitutional review, modeled on the German Federal Constitutional Court. It exercises five types of jurisdiction: constitutional review of statutes, constitutional complaints, competence disputes, impeachment trials, and dissolution of political parties. The Constitutional Court’s decisions are binding on all state organs and lower courts.

Types of Constitutional Review

Review of Statutes (Article 111(1)1 — Hun-Ga)

When a court determines that a statute is unconstitutional, it must refer the question to the Constitutional Court. This concrete norm control (구체적 규범통제) procedure ensures uniform constitutional interpretation. Ordinary courts may not declare statutes unconstitutional; they must petition the Constitutional Court.

Abstract Norm Control (Hun-Dang)

The Constitutional Court may review statutes on petition by the President, the National Assembly, or a court even before the statute is applied. This procedure is rarely used compared to concrete review.

Constitutional Complaint (Hun-Ba)

The constitutional complaint procedure (Article 68 of the Constitutional Court Act) allows individuals to petition the Court directly:

• Article 68(1): Complaints against public power (statutes, administrative acts, judicial decisions) that infringe fundamental rights
• Article 68(2): Complaints against statutes that courts have applied but declined to refer for constitutional review

The constitutional complaint is a subsidiary remedy: petitioners must exhaust other legal remedies (ordinary court appeals) before filing.

Competence Disputes (Hun-Ra)

The Court resolves disputes over the scope of authority between:

• State organs (President, National Assembly, Supreme Court, Constitutional Court)
• Central and local governments

Impeachment Trials (Hun-Na)

The Constitutional Court adjudicates impeachments of the President, Prime Minister, Cabinet members, Supreme Court Justices, Constitutional Court Justices, and other high-ranking officials. Impeachment requires a two-thirds National Assembly vote and Constitutional Court confirmation (six justices minimum).

Party Dissolution (Hun-Da)

The Court may dissolve a political party if its purpose or activities violate the “basic democratic order” (Article 8 of the Constitution, Article 55 of the Constitutional Court Act). This power has been used to dissolve the Unified Progressive Party (2014).

Standards of Review

The Constitutional Court applies varying standards depending on the right affected:

• Strict scrutiny: For fundamental liberties (expression, conscience, assembly, privacy)
• Intermediate scrutiny: For equality rights
• Deferential review: For economic and social rights, tax policy, and national security (subject to proportionality)

Effects of Decisions

• Unconstitutional decisions (위헌결정): The statute loses effect from the date of decision (Article 47(2))
• Constitutional decisions (합헌결정): The statute is confirmed as constitutional
• Declarations of inconsistency (헌법불합치결정): The statute remains temporarily effective pending legislative amendment
• Conditional unconstitutionality (한정위헌): The statute is constitutional only if interpreted restrictively

Conclusion

South Korea’s constitutional review system is a cornerstone of democratic constitutionalism. The Constitutional Court’s active engagement with fundamental rights, legislative power, and executive authority has established it as one of the most influential constitutional courts in Asia.