Constitutional Court of Korea

Introduction

The Constitutional Court of Korea (헌법재판소) was established on September 1, 1988, under the 1987 Constitution. Modeled on the German Federal Constitutional Court (Bundesverfassungsgericht), it is a specialized constitutional tribunal with exclusive jurisdiction over constitutional review, constitutional complaints, competence disputes, impeachment trials, and political party dissolution. The Court consists of nine justices serving six-year renewable terms.

Composition

Appointment Process

The nine justices are appointed by the President of Korea, with three justices designated by the National Assembly and three designated by the Chief Justice of the Supreme Court (Article 111(2) of the Constitution). This tripartite appointment structure ensures balanced representation across branches of government.

Qualifications

Justices must be at least 40 years old and qualified as lawyers (judges, prosecutors, or attorneys with at least 15 years of experience). Constitutional law expertise is increasingly valued in appointments.

Term and Tenure

• Term: Six years, renewable
• Retirement age: 70
• Removal: Only by impeachment or criminal conviction

President and Vice-President

The President of the Constitutional Court is appointed by the President of Korea with National Assembly consent (from among the justices). The President represents the Court, presides over deliberations, and manages administration.

Jurisdiction

The Constitutional Court exercises five types of jurisdiction under Article 111(1) of the Constitution:

1. Review of Statutes (Hun-Ga/헌가)

When a court determines a statute is unconstitutional, it must refer the question to the Constitutional Court. Only the Constitutional Court may declare statutes unconstitutional — ordinary courts may not.

2. Constitutional Complaints (Hun-Ba/헌바)

Individuals may petition the Constitutional Court directly when their fundamental rights are infringed by the exercise or non-exercise of public power (Article 68(1) of the Constitutional Court Act). This is the most frequently used procedure.

3. Competence Disputes (Hun-Ra/헌라)

The Court resolves disputes over the scope of authority between state organs and between central and local governments.

4. Impeachment Trials (Hun-Na/헌나)

The Court adjudicates impeachments of high-ranking officials (President, Prime Minister, Cabinet members, judges, etc.) initiated by a two-thirds National Assembly vote.

5. Party Dissolution (Hun-Da/헌다)

The Court may dissolve political parties that violate the basic democratic order.

Procedure

Case Initiation

Cases are initiated by petition (constitutional complaint, competence dispute, party dissolution) or referral from ordinary courts (statute review).

Review Process

• Assignment: Cases assigned to a panel of three justices for preliminary review
• Full bench: Cases proceed to the full nine-justice bench for final decision
• Oral argument: Required for statute review and impeachment; discretionary for complaints

Decision-Making

Decisions require a majority of participating justices (minimum seven justices). Unconstitutional decisions require at least six justices (Article 113(1) of the Constitution). Dissenting and concurring opinions are published.

Types of Decisions

• Unconstitutional (위헌) : Statute loses effect from decision date
• Constitutional (합헌) : Statute confirmed constitutional
• Declaration of inconsistency (헌법불합치) : Statute remains temporarily effective pending legislative amendment
• Limited unconstitutionality (한정위헌) : Statute unconstitutional under specific interpretation

Impact and Significance

The Constitutional Court has been a transformative institution in Korean democracy:

• Removed two presidents through impeachment (Roh Moo-hyun acquitted 2004; Park Geun-hye removed 2017)
• Decriminalized adultery (2015) and abortion (2019)
• Required alternative military service for conscientious objectors (2018)
• Established proportionality as the primary constitutional standard
• Protected minority rights against majoritarian legislation

Conclusion

The Constitutional Court of Korea has established itself as one of the most active and influential constitutional courts in Asia. Its independence, broad jurisdiction, and willingness to enforce constitutional limits on government power have made it a cornerstone of Korean democratic constitutionalism.