Constitutional Court’s Jurisdiction

Dear Professor Hayes:

What is the function of the Constitutional Court in Korea's adjudication system? As you are aware the U.S. does not have a Constitutional Court, what types of issues does the Court hear? U.S. Law Student.

Dear U.S. Law Student:

The Constitutional Court of Korea was created in 1988 and was vested with the power to rule on: the constitutionality of laws referred to the Court by the ordinary courts; impeachment of high-ranking government officials; dissolutions of political parties; competence disputes; and constitutional complaints directly filed to the Court. The Court has ruled on over 15,000 cases in its short history and declared over 450 laws or government actions unconstitutional, non-conformable to the constitution, or unconstitutional in part.

Constitutionality of Law. When an ordinary court deems that their court must make a ruling on the constitutionality of a law, act, treaty, or presidential decree before the determination of the issue in question, the court should refer the case to the Constitutional Court. The Constitutional Court will then rule on the constitutionality of the law, act, treaty, or presidential decree. The determination will bind ordinary courts, national institutions, and local governments.

If the court refuses to refer an issue to the Constitutional Court, a petitioner may directly file to the Court a Constitutional Complaint after exhausting administrative options or prove that the issue concerns a significant constitutional issue.

Impeachment of High-Ranking Government Officials. After the National Assembly impeaches a government official the Constitutional Court may vote to remove the person from office. To date, one case concerning impeachment was adjudicated at the Constitutional Court. The case concerned the nation's president.

Dissolution of Political Parties. The Executive Branch, after the resolution of the State Council, may request the Court to rule that the objectives or activities of a certain political party infringes the constitutional democratic order. No case concerning the dissolution of a political party, to date, was filed to the Court.

Competence Disputes. The state or local government may request the Court to decide any pending controversies concerning jurisdictional issues between organs of the State, State and a local governments, and local governments. The decision of the Court binds all government organs.

Constitutional Complaint. A person whose constitutional rights guaranteed by the Constitution was infringed through the exercise or nonexercise of governmental powers may file a petiton to the Court. If an act, ordinance, presidential decree, or other law directly infringes upon an individual's constitutional rights, the individual may file a Constitutional Complaint.

A judgment accepting a Constitutional Complaint binds all ordinary courts, national institutions, and local governments.

The Constitutional Court of Korea is thus a court of limited jurisdiction that has the power to only consider the aforementioned. The Court was responsible for deciding many of the most significant legal issues facing Korea and has been noted in nationwide polls as the most respected government institution in Korea.

American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at www.ahnse.blogspot.com.