Constitutional Complaint Procedure in South Korea

Introduction

The constitutional complaint procedure (헌법소원심판, case citation prefix Hun-Ba) is a direct individual petition to the Constitutional Court of Korea for the protection of fundamental rights. Established under Article 68 of the Constitutional Court Act, the procedure allows any person whose fundamental rights are infringed by the exercise or non-exercise of public power to seek redress directly from the Constitutional Court. It is the most frequently used jurisdiction of the Constitutional Court, with thousands filed annually.

Legal Basis

Article 68(1) — Main Constitutional Complaint

“Any person whose fundamental rights guaranteed by the Constitution are infringed by an exercise or non-exercise of public power may file a constitutional complaint with the Constitutional Court: Provided, that if remedies through other procedures exist, the person shall first exhaust such remedies.”

Key elements:

• Any person: Natural persons, legal persons, and unincorporated associations
• Fundamental rights infringement: All rights in Chapter II (Articles 10–37)
• Exercise or non-exercise of public power: All state actions, including judicial decisions, administrative acts, and legislation
• Subsidiarity: Exhaustion of ordinary remedies is required except where manifestly impractical

Article 68(2) — Statutory Constitutional Complaint

Where a court applies a statute that the petitioner believes is unconstitutional but the court does not refer the question to the Constitutional Court, the petitioner may directly challenge the statute’s constitutionality after the court’s final decision.

Procedure

Filing Requirements

• Time limit: 90 days from the date of infringement (for administrative or judicial acts); 90 days from knowledge, one year absolute (for legislative acts)
• Form: Written petition specifying the infringed right, the public power at issue, and the grounds for unconstitutionality
• Legal representation: Not required, but recommended; the Court provides pro bono counsel for indigent petitioners

Preliminary Review

Each petition is assigned to a panel of three justices for preliminary review. The panel may:

• Reject the petition if manifestly unfounded or procedurally defective (majority of petitions are rejected at this stage)
• Refer the petition to the full bench for merits review

Full Bench Review

If accepted, the case proceeds to the full nine-justice bench:

• Oral argument: The Court may hold hearings
• Merits determination: The Court decides whether the challenged public power infringed fundamental rights

Decisions

The Court may render:

• Dismissal (각하): Procedural defect or no infringement
• Rejection (기각): No constitutional violation on merits
• Upholding (인용): Constitutional violation — the Court may vacate the challenged action or declare the statute unconstitutional

Scope and Limitations

Reviewable Acts

• Legislation: Statutes and regulations
• Administrative acts: Individual decisions, orders, and regulations
• Judicial decisions: Court judgments and rulings (limited scope — the Court may review whether the judgment infringed fundamental rights through misinterpretation of law)

Non-Reviewable Acts

• Presidential acts of state: Matters of high policy discretion (foreign affairs, national defense)
• Internal parliamentary proceedings: Internal matters not affecting individual rights

Comparative Features

The Korean constitutional complaint differs from its German model:

• Subsidiarity: Korean procedure requires exhaustion of all other remedies, while German procedure allows direct complaint against statutes
• Scope: Korean procedure includes judicial decisions, while German complaints against court decisions are more limited
• Volume: Korean Court receives significantly more complaints per capita than the German Federal Constitutional Court

Significance

The constitutional complaint procedure has been transformative:

• Enabled ordinary citizens to directly enforce constitutional rights
• Allowed the Court to develop a robust fundamental rights jurisprudence
• Created a “citizen’s court” accessible to individuals
• Generated landmark decisions on conscientious objection, privacy, due process, and equality

Conclusion

The constitutional complaint procedure is the Constitutional Court’s most important jurisdiction in practice. By allowing individuals to directly petition for rights protection, it has democratized constitutional adjudication and made the Constitution a living instrument accessible to all citizens.