South Korea

Overview of the Korean Legal System

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Overview of the Korean Courts1

There are six types of courts in Korea, which are the Supreme Court, High Court, District Court, Patent Court,
Family Court, and Administrative Court. The Korean judicial system is based on the three instance trial system,
which is composed of district courts, the high courts and the Supreme Court. Other courts exercise specialized
functions with the Patent Court positioned on the same level as the high courts and the family court and the
administrative court positioned on the same level as the district courts.

A district court and the family court may establish branch courts, municipal courts and Registration Offices or any
one or more of the three institutions if additional support is necessary to carry out their tasks. A branch court of both
the district court and the family court may be established within the same court complex.

There is also other special court as the martial court. The difference between martial court and non-martial court is
that military officers who are not qualified as judges hear cases in martial court, whereas in non-martial court only
judges may adjudicate cases. However, including military trials, the Supreme Court has final appellate jurisdiction
over all cases.

1 https://eng.scourt.go.kr/eng/judiciary/introduction.jsp#t104
Relations between the Courts and the Constitutional Court

The Constitutional Court handles constitutional issues such as the constitutionality of a law, impeachment,
dissolution of a political party, constitutional petitions filed directly to the Constitutional Court, and jurisdictional
conflicts involving State agencies and/or local governments.

While the Constitutional Court retains jurisdictions to decide the constitutionality of a law, other courts have some
role in this process. When the constitutionality issue of a law, which is to be applied to a concrete case becomes a
precondition of a court's judgment and the court deems the law to be in contravention of the Constitution, the court
shall request, of its own motion or according to the application of the parties, adjudication of the Constitutional
Court as to the constitutionality of that law. The Constitutional Court then adjudicates this issue. When the court
deems a law is not unconstitutional, the court will apply the law to a concrete case without asking for adjudication of
the Constitutional Court. Three factors are necessary to deem an issue of a law's constitutionality a precondition of a
court's judgment: first, a concrete case is pending before the court, second, a law applies to the concrete case and
third, the law's constitutionality affects the outcome of the decision. Such laws or articles thereof as decided
unconstitutional by the Constitutional Court shall lose their force from the day the decision is given. However, the
laws or articles thereof, which contain penalties, shall lose their force retroactively. When the court refuses to refer a
case to the Constitutional Court, a petitioner may file a case directly to the Constitutional Court.
The Chief Justice of the Supreme Court takes part in forming the benches of the Constitutional Court. All nine
Justices of the Constitutional Court are appointed by the President of the Republic. But three are elected by the
National Assembly, and three are designated by the Chief Justice of the Supreme Court.

Courts Adjudication Procedure

Except in military courts, adjudication including hearings and rendering judgment is presided by a judge. Case trials
are presided either by a single judge or a panel of three judges. As for selected criminal cases, lay participation trials
will be implemented on a pilot basis from January 2008. "Lay Participation Committee" to be formed in 2010, will
be composed of members from legal probationers, academia, and NGO groups. The Committee will design a final
form of Lay Participation System to be implemented starting 2012, utilizing the evaluations from the Pilot system.
Lay Participation will be applied to serious criminal cases at first. Applicability of the Lay Participation System to
other types of cases will be determined after reviewing the Lay Participation's application to criminal cases. The
final form of the lay participation trials particularly suited for the Korean judiciary is planning to be launched by
2012. This was the result of efforts toward continuous judicial reform to induce public participation in the judiciary
in the context of promoting the spirit of judicial democracy.

In general, all hearings and rendering of judgments are open to the public. However, if there is any possibility that
opening of hearings to the public could be subject to impairing national security, public peace and order, or be
contrary to good morals; the court may decide to close the hearings to the public. In either case, rendering of
judgments must be open to the public under all circumstances.

Videotaping, taking photographs or live broadcasting in a courtroom without prior permission of the presiding judge
is not permissible.

The court may confine for not more than 20 days, or fine for not more than 1 million Korean won (approximately
US$ 887 as of October 2015), or both on a person who interrupts the conduct of a trial by harsh language,
disturbance, etc.
The court conducts its affairs in Korean. Interpretation can be arranged whenever deemed necessary.

Constitutional Court

Adjudication on Constitutionality of Statutes2

Purpose

Adjudication on the constitutionality of statutes is an adjudication system which nullifies the statute that has been
found unconstitutional by the Court. It is a core component of constitutional adjudication, which secures checks-
and-balances mechanism against the legislative branch for the purposes of protecting the Constitution.

2 http://english.ccourt.go.kr/cckhome/eng/jurisdiction/jurisdiction/constComplaint.do
Causes for Request

When the issue of whether or not statutes are constitutional is relevant to the judgment of the original case, the
ordinary court may request the Constitutional Court, ex officio or by decision upon a motion by the party,
adjudication on the constitutionality of statutes. The subject of adjudication on constitutionality includes statutes
legislated by the National Assembly, as well as emergency presidential orders, treaties, and universally accepted
international laws.

Request Procedure

The request on adjudication on unconstitutionality of statutes can be made by individual ordinary courts, but they
must go through the Supreme Court. Should an individual wish to submit a motion to the ordinary court for request
of a constitutional review, the motion must specify: indication of the case and the parties; the statute or any
provision of the statute which is interpreted as unconstitutional; bases on which it is interpreted as unconstitutional;
and other necessary matters. The courts decision to accept or dismiss the case is final, and the individual cannot
appeal. When an ordinary court requests to the Constitutional Court an adjudication on the constitutionality of
statues, the courts written request to the Constitutional Court shall include the following matters: indication of the
requesting court, indication on the case and the parties; the statute or any provision of the statute which is interpreted
as unconstitutional; bases on which it is interpreted as unconstitutional; and other necessary matters.

Suspension of Proceedings, etc.

When an ordinary court requests to the Constitutional Court adjudication on the constitutionality of statutes, the
proceedings of the court shall be suspended until the Constitutional Court makes a decision: provided, that if the
court deems it urgent, the proceedings, other than the final decision, may proceed.

Opinions of Parties, etc. to Litigious Case

The parties to the original case and the Minister of Justice may submit to the Constitutional Court an amicus brief on
the issue of whether or not statutes are constitutional.

Decision of Constitutionality and its Effect

The Constitutional Court will decide whether or not the requested statute or any provision of the statute is
unconstitutional: provided, that if it is deemed that the whole provisions of the statute become unenforceable due to
a decision of unconstitutionality of the requested provision, a decision of unconstitutionality of the statute as a whole
may be made.
Depending on the content of the statute, the Constitutional Court may decide on the case as nonconforming to the
constitution, unconstitutional in part, constitutional in part, as well as unconstitutional or constitutional. The
Constitutional Court shall serve an authentic copy of the written decision on the requesting court within 14 days
from the day of decision. Any statute or provision thereof decided as unconstitutional shall lose its effect from the
day on which the decision is made: provided, that the statutes or provisions thereof relating to criminal penalties
shall lose their effect retroactively. In cases referred to in the proviso, a retrial may be allowed with respect to a
conviction based on the statutes or provisions thereof decided as unconstitutional. Any decision that statutes are
unconstitutional shall bind the ordinary courts, other state agencies and local governments.
Constitutional Complaint3

Purpose

The constitutional complaint is an adjudication system where anyone whose basic rights guaranteed under the
Constitution has been infringed by governmental power, can file a constitutional complaint. Anyone, including
judicial persons may file a constitutional complaint. Unlike other adjudications of the Constitutional Court, where
the National Assembly, executive branch, or ordinary court is the claimant, the individual citizen becomes the
claimant in constitutional complaint, and it aims to directly relieve the person from violation of basic rights.
Therefore, constitutional complaint is the core of our systematic mechanisms to assure basic rights. With the
introduction of the constitutional complaint system, Korean democracy took an important step forward; it also has
contributed to the revitalization of the constitutional adjudication system.

Types and Causes for Request

Constitutional Court Act Article 68-1Any person who claims that his basic right which is guaranteed by the
Constitution has been violated by an exercise or non-exercise of governmental power, except the judgments of the
ordinary courts, may file a constitutional complaint to the Constitutional Court: provided, that if any relief process is
provided by other laws, no one may file a constitutional complaint without having exhausted all such processes.
Since the legislative power of the National Assembly is also a public power, a case where a statute that directly
infringes upon the basic rights is legislated, or where the rights are infringed by the neglects of legislature by not
enacting law which is mandated to be legislated, are also subjects for a constitutional complaint.

Constitutional Court Act Article 68-2If the motion made under Article 41-1 for request of adjudication on
constitutionality of statutes is rejected, the party may file a constitutional complaint with the Constitutional Court. In
this case, the party may not repeatedly move to request for adjudication on the constitutionality of statutes for the
same reason in the procedure of the case concerned.

Prior Review

When a constitutional complaint is filed, the Panel conducts a prior review. In case of any of the followings, the
Panel shall dismiss a constitutional complaint with a decision of unanimity: the constitutional complaint is filed
without having exhausted all the relief processes provided by other laws, or is directed against the judgment of the
ordinary court (except for cases in which the court applied the laws that the Constitutional Court declared as
unconstitutional); a constitutional complaint is filed after expiration of the time limit prescribed in Article 69; a
constitutional complaint is filed without a counsel, or the court-appointed counsel; a constitutional complaint is
inadmissible and the inadmissibility cannot be corrected. When a Panel cannot reach a decision of dismissal
with unanimity in 30 days, it shall transfer the constitutional complaint to the Full Bench. When a dismissal is not
decided within 30 days after requesting the adjudication on constitutional complaint, it shall be deemed that a
decision to transfer it to the Full Bench is made.

Presentation of Opinions by
Interested Agencies

State agencies or public organizations which have an interest in adjudication on a constitutional complaint, and the
Minister of Justice may present to the Constitutional Court an amicus brief on the adjudication. When a

3 http://english.ccourt.go.kr/cckhome/eng/jurisdiction/jurisdiction/constComplaint.do
constitutional complaint prescribed in Article 68-2 is transferred to the Full Bench, the provisions of Articles 27-2
and 44 shall apply mutatis mutandis to it.

Content of the Adjudication

There are three types of decisions in the final judgment of the Constitutional Court; rejection, dismissal and
upholding a case. Rejection is made when the request of adjudication does not have a rationale behind the request;
dismissal is made when the request was made unlawfully; and upholding is made when the request has reason.
According to Article 68-1 of the Constitution, if a request of adjudication was found to have rationale, the
Constitutional Court must specify the exercise or non-exercise of governmental power that infringed basic rights. In
this case, if the Constitutional Court finds that the cause of such infringement was from the laws or statutes, the
Court may hold the statute unconstitutional. Provided, if the unconstitutionality of a clause makes the whole statute
unenforceable, the Court may announce the whole statute unconstitutional.

Effect of Decision of Unconstitutionality

In case of Article 68-1 of the Constitution, the upholding decision shall bind the ordinary courts, other state agencies
and local governments. In particular, when a decision of upholding was made against the non-exercise of
governmental power, the respondent must take new action in accordance with the decision. Regarding Article 68-2
of the Constitution, the upholding decision shall bind the ordinary courts, other state agencies and local
governments. Any statute or provision thereof decided as unconstitutional shall lose its effect from the day on which
the decision is made: provided, that the statutes or provisions thereof relating to criminal penalties shall lose their
effect retroactively.
When the constitutional complaint under Article 68-2 of the Constitutional Court Act has been upheld, the party
may claim for a retrial with respect to a final judgment having applied the statutes or provisions thereof decided as
unconstitutional, whether criminal, civil or administrative. In addition, because the statutes or provisions relating to
criminal litigation lose their effect retroactively, a person convicted based on a statute held as unconstitutional may
claim a retrial, even if the case is not related to the constitutional complaint.