Editor’s Note: Today we publish the 2016 Report on South Korean constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Leo Mizushima, Research Associate at the Institute of Comparative Law, Waseda University
Since the founding of the Republic of Korea in 1948 until the 1980s, Korea was under authoritarian government. Korea democratized in 1987, and the Constitutional Court was established the following year. The Korean Constitutional Court is dedicated to democratization and the improvement of human rights in Korean society, which reflects in the character of the Court. The year 2017 is the 30th anniversary of democratization.
The year 2016 was one of the most important years in the history of Korean constitutional law. Late in the fall, President Geun-hye Park became embroiled in a political scandal, dubbed the “Choi Soon-sil gate,” which resulted in a strong backlash from the people. The president was suspected of leaking state secrets to her longtime friend and private aide, Soon-sil Choi. The people protested against President Park and demanded her resignation. The impeachment bill of President Park was approved by the National Assembly on December 9, and the Constitutional Court had to decide if Park deserved to be impeached within 180 days. All eight judges of the court unanimously approved the impeachment on March 10 and President Park was officially impeached from office.
This article examines the system of constitutional review and the structure of the Korean Constitutional Court before introducing some cases. Subsequently, the major cases from 2016 will be introduced. The problems and tasks of the Korean Constitutional Court and the Constitution will be discussed in conclusion.
II. The Constitution and the Court
The political system in the Republic of Korea has been changed frequently by presidents since its foundation in 1948. The system of constitutional review has also changed drastically. For instance, the First Republic, the Syng-man Rhee administration, established the Constitutional Council for Constitutional review. The Second Republic, the only parliamentary cabinet system implemented in the history of Korea, planned to build the Constitutional Court instead. However, the Second Republic was short-lived due to the military coup led by General Chung-hee Park, who later became president, and the Constitutional Court was never established. During the Third Republic, the Chung-hee Park administration, the Supreme Court conducted the constitutional review. The Fourth Republic, during which President Park’s power strengthened, and the Fifth Republic, the Doo-hwan Chun administration, re-established the Constitutional Council from the First Republic. However, during the authoritarian regime, the Constitutional review was not actively exercised, and only a few cases took place during the First and Third Republics.
In 1987, Korea was democratized, and the Constitution amended. The Constitutional Court was established the following year. According to the Korean Constitution, the Constitutional Court consists of nine Justices, three nominees each chosen by the National Assembly, president, and Supreme Court. Choosing three nominees each from three different power centers was instituted to maintain the equilibrium of power. Each Justice serves a term of six years and can be reappointed (Article 112(1)).
Six Justices’ concurrence is required for a decision on unconstitutionality, impeachment, dissolution of a political party, and constitutional complaint (Article 113(1)). As of March 20, the terms of two Justices expired: President Han-chul Park left in January, and Justice Jung-me Lee left in March. Although there are only seven Justices for now, it is still mandatory to obtain the concurrence of six Justices to decide on unconstitutionality.
The Korean Constitutional Court has jurisdiction over five matters: the constitutionality of law, impeachment, dissolution of a political party, disputes about the jurisdictions, and constitutional complaint (Article 111). The Court deals with the constitutionality of a law and constitutional complaints most frequently. There has been only one major case on the dissolution of a political party: the dissolution of the Unified Progressive Party in December 2014. There were two cases of impeachment. The first was against former President Moo-hyun Roh in 2004, which was overturned. The latter was against former President Geun-hye Park in 2017.
The design of the Korean Constitutional Court seems similar to that of Germany. However, there are some structural differences between the Korean Constitutional Court and German Federal Constitutional Court. First, unlike the German Federal Constitutional Court, the Korean Constitutional Court does not allow initiation of a constitutional complaint regarding decisions made by ordinal courts in Korea (Constitutional Court Act, Article 68 (1)). Second, the Korean Constitutional Court does not have the authority to decide on the constitutionality of the law if there is not a concrete lawsuit. Third, in Korea, plaintiffs can directly initiate a constitutional complaint in the Constitutional Court to decide on the constitutionality of the law if the ordinal court does not send the case to the Constitutional Court, despite the plaintiffs demand to do so.
In the Korean Constitutional Court,“the Principle of Proportionality” is entrenched as a criterion for Constitutional review in the field of fundamental rights. This principle was derived from Article 37 (2) of the Constitution, which decrees that “The freedoms and rights of citizens may be restricted by the Act only when necessary for national security, the maintenance of law and order or for public welfare.” The Justices examine four points: “correctness of purpose,” “appropriateness of procedure,” “minimality of damage,” and “balance of benefit and protection of law.” The Act becomes unconstitutional if the reviewed Act violates any one of these points.
III. Constitutional Controversies
There is also a difference in the binding of decisions of the Korean Constitutional Court and that of Germany. According to Article 31 (1) of the German Federal Constitutional Court Act, “The decisions of the Federal Constitutional Court shall be binding upon federal and Land constitutional organs as well as on all courts and administrative authorities.” On the other hand, Article 47 (1) of the Korean Constitutional Court Act decrees, “Any decision that an Act is unconstitutional shall be binding upon courts, and other state agencies and local governments.” Therefore, there are controversies with respect to whether “Modified Form of Decisions,” especially the decision of limited unconstitutionality described later, can be binding for courts and other state agencies and local governments.
The forms of decisions of the Korean Constitutional Court consist of constitutionality and unconstitutionality as well as “Modified Form of Decisions.” Modified form of decisions is defined as various forms of decisions given in cases where it is necessary to respect the legislative and prevent disorder by giving a decision of unconstitutionality despite recognizing unconstitutionality of the law. There are three types of modified form of decisions by the Korean Constitutional Court: “Decision of Limited Constitutionality,” “Decisions of Limited Unconstitutionality,” and “Decision of Unconformity.” Limited constitutionality is the decision that pertains only to certain interpretations as constitutional. Limited unconstitutionality is the decision that considers that the concerning laws can be unconstitutional depending on their interpretation. The decision of unconformity is similar to the decision of unconstitutionality but allows the concerning act to be valid for a certain period. Currently, decisions of limited constitutionality are not given.
Since the Constitutional Court was established after the Supreme Court, there have been disagreements between the two courts. For instance, since Article 47 (1) of the Constitutional Court Act decrees that the decision of unconstitutionality binds courts and other state agencies and local governments, the Supreme Court insists that the decision of limited unconstitutionality by the Constitutional Court cannot bind the ordinal courts as the Constitutional Court is only allowed to decide whether an act is constitutional and specific interpretations of the act are the jurisdiction of the Supreme Court. Essentially, the Supreme Court still often applies the act, which was already determined to be limited unconstitutional. To solve these difficult situations, the Constitutional Court decided that Article 68 (1) of Constitutional Court Act will be considered limited unconstitutional if plaintiffs are not allowed to initiate a constitutional complaint regarding the decisions of the courts in cases where the ordinal court adopted the act that has already been interpreted as unconstitutional by modified form of decisions of the Constitutional Court.
IV. Major Cases in 2016
A. Separation of Powers
- Impeachment of President Geun-hye Park (2017. 3. 10. – 2016 Hun-Na 1
On December 9, the National Assembly passed the impeachment bill for President Geun-hye Park. Though the National Assembly listed 13 violations of the Constitutions and Acts, the Constitutional Court structured them into five points during their deliberation: violation of national sovereignty, abuse of power as president, violation of criminal law such as bribery, violation of the duty of the people’s life protection at the Sewol ferry disaster, and violation of freedom of speech. Among these, the first three points are related to the interference in state affairs by Soon-sil Choi. The Constitutional Court dismissed the Sewol ferry disaster and did not recognize the violation of freedom of speech. Though the Court did not recognize the abuse of power on the appointment to officer, the Court recognized that President Park abused her power because she accommodated Choi’s conveniences. All eight Justices unanimously decided on the impeachment of President Park on March 10, 2017. It was the first time that the Constitutional Court had decided on the impeachment of a president.
B. Rights and Freedoms
- Constitutionality of Excluding English Education for First and Second Graders at Private Elementary Schools (2016. 2. 25. – 2013 Hun-Ma 838)
Among the major cases at the Korean Constitutional Court, these are the prominent examples of decisions of constitutionality. On February 25, the Constitutional Court decided that the Ministry of Education, Science and Technology’s (MEST, currently referred to as the Ministry of Education (MOE)) notice 2012-31 II, which excluded English classes from the curriculum for the first and second grade of elementary school, is constitutional. Although the first and second graders are not required to study English according to the notice from MEST, 32 of 76 private elementary schools taught English to first and second graders. The Minister of MEST decided to reduce the intensity of English education, and the local education officer of the Seoul Sungbuk District Office of Education demanded the cooperation of local schools. The parents of pupils attending private schools insisted that the decision violated the children’s right to education. The Constitutional Court decided that the notice does not violate the parents’ right to educate their children because first- and second-grade students would find it difficult to learn Korean if they study English at the same time.
- Constitutionality of Considering Mass Media and Faculty Members as “Public Officials” and Prohibiting Them from Being Involved in Bribery (2016. 7. 28. – 2015 Hun-Ma 236, 412, 662, 763 (combined))
On July 28, the Constitutional Court decided that Article 2 of the “Improper Solicitation and Graft Act” is constitutional. According to Article 2 of the Act, “public officials, etc.” are prohibited from being involved in bribery. The Article defined faculty members of private schools and mass media professionals as “public officials, etc.” Faculty members of private schools and mass media professionals insisted that this violated their rights of action and equality. The Constitutional Court, however, rejected this and suggested that the social impact of faculty members and the mass media were so enormous that they must preserve their integrity as public officials.
- Constitutionality of the Term “Other Disgraceful Conduct” in Military Criminal Act (2016. 7. 28. – 2012 Hun-Ba 258)
On July 28, the Constitutional Court decided that Article 92-5 of the Military Criminal Act is constitutional. The plaintiff, a senior officer who violated Article 92-5 of the Military Criminal Act, was sentenced to six-months’ imprisonment; however, the sentence was suspended through a stay of execution for a year. He was accused of allegedly touching his junior officer’s crotch 13 times. According to Article 92-5 of the Military Criminal Act, “A person who commits anal intercourse with any person prescribed in Article 1 (1) through (3) or other disgraceful conduct shall be punished by imprisonment with labor for not more than two years.” The plaintiff insisted that the term, “other disgraceful conduct” is too vague. The Constitutional Court, however, explained that the Military Criminal Act was amended in 2009 and articles on punishment with respect to rape and quasi-rape were inserted. Therefore, the Court decided the Article was constitutional because the term “other disgraceful conduct” can be interpreted as “the behavior that public can feel aversion, being against sexual morality, and fulfill sexual satisfaction though not to the extent of rape or quasi-rape.” In this case, four of nine Justices dissented.
- Constitutionality of Limiting the Taking the Bar Examination to Only Five Times (2016. 9. 29. – 2016 Hun-Ma 47)
On September 29, the Constitutional Court decided that Article 7 (1) of “National Bar Examination Act” is constitutional. The Article decrees that it is possible to take the Bar Exam five times within five years after earning a Juris Doctorate from a law school. One of the plaintiffs took the exam from 2012 and was not able to pass the exam until 2016, and lost the eligibility. The plaintiff insisted that the Article violates equal rights because the other national examinations, such as for physicians and pharmacists, do not have a limitation on the number of attempts. The other plaintiff earned a Juris Doctorate, but could not take the exam in 2016 because she was pregnant. Since Article 7 (2) of the Act only decrees that “the period of military service shall not be included in the period of application for the Exam under subparagraph (1),” the plaintiff insisted that the Article violates the welfare and rights of women secured by Article 34 (3), and violates the protection of mothers secured by Article 36 (2). The Constitutional Court explained that it takes a long time to prepare for the Bar Exam compared to other national exams. Therefore, limiting the number of attempts can prevent talented people from wasting time and thus, the Article can be interpreted as rational and constitutional. On the other hand, the Constitutional Court did not decide if Article 7 (2) is constitutional because the Court mentioned that it is too late for the plaintiff to initiate a constitutional complaint.
- Unconstitutionality of Registration of Personal Information of Ex-Sexual Offenders (2016. 3. 31. – 2015 Hun-Ma 688)
The Constitutional Court decided the following cases as unconstitutional. On March 31, the Constitutional Court decided that Article 42 (1) of the “Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes” is unconstitutional. According to the Article, the person finally declared guilty of crimes such as obscene acts by using means of communication shall be subject to registration of personal information. The plaintiff was prosecuted for allegedly sending an e-mail that caused a sense of sexual shame in a 14-year-old girl. He was declared guilty and sentenced to pay a fine of one million Korean Won and ordered to take a 40-hour sexual violence prevention program. The plaintiff initiated a constitutional complaint that Article 42 (1) of the Act violated his right of self-determination on personal information. The Constitutional Court decided that the Article exceeded the minimality of the violation because the Article decrees that all persons who are declared guilty are subject to registrations regardless of the gravity and characteristics of their crimes. The Constitutional Court deemed that plaintiff’s violated benefit, and the obtained social interests by the Article, are not balanced and decided that it was unconstitutional. In this case, however, three Justices expressed opposition.
- Unconstitutionality of Limiting Ex-Sexual Offender’s Right to Work at Child or Juvenile Related Institutions and Facilities with Disabled Persons (2016. 3. 31. – 2013 Hun-Ma 585・786, 2013 Hun-Ba 394, 2015 Hun-Ma 199・1034・1107 (combined), 7. 28. – 2015 Hun-Ma 915)
On March 31, the Constitutional Court gave a decision of unconstitutional in some other cases regarding the rights of ex-convicts of sexual crimes. According to Article 44 (1) of the “Act on the Protection of Children and Juveniles against Sexual Abuse,” ex-convicts who had committed sexual crimes and sexual offenses against children or juveniles are prohibited from working at a child or juvenile-related institution for 10 years. The plaintiffs insisted that the Article violates their freedom of occupation. The Constitutional Court recognized “correctness of purpose” and “appropriateness of procedure,” and ruled the Article as unconstitutional because banning ex-convicts to work for 10 years based on the assumption that they will repeat their offences is a violation of the “minimality of damage” and “balance of benefit and protection of law.”
On July 28, the Constitutional Court decided that Article 59-3 (1) of the “Act on Welfare of Persons with Disabilities,” which prohibited ex-convicts who had committed sexual crimes and sexual offenses against children and juveniles from working at facilities for persons with disabilities for 10 years, was unconstitutional.
- Unconstitutionality of the Term “Job Detrimental to Public Health or Public Order” in the Act on the Protection, etc. of Temporary Agency Workers (2016. 11. 24. – 2015 Hun-Ga 23)
The cases discussed above seem to indicate that the Korean Constitutional Court is relatively generous to ex-convicts of sexual offenses. The Court, however, did not take kindly to foreign, female, temporary workers being involved in the sex industry. On November 24, the Constitutional Court ruled Article 42 (1) of the “Act on the Protection, etc. of Temporary Agency Workers” as unconstitutional. The plaintiff was sentenced to eight months’ imprisonment at the first trial for sending a foreign, female, temporary agency worker to a nightclub to engage in prostitution. Article 42 (1) of the Act decrees that “each person, who assigns a worker to place him/her in a job detrimental to public health or public order, shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won.” The plaintiff insisted that the term “job detrimental to the public health of public order” is vague. The Constitutional Court ruled the Article unconstitutional due to the “Principle of Clarity.”
- Recognizing Traffic Accidents during Commute as “Accident on Duty” (2016. 9. 29. – 2014 Hun-Ba 254)
Decisions of unconformity made by the Constitutional Court were observed in 2016. On September 29, the Constitutional Court decided unconformity to the Constitution on Article 37 (1) of the “Industrial Accident Compensation Insurance Act.” The plaintiff broke his fingers in a car crash while on his way home by bicycle. Although he applied to the Korea Workers’ Compensation and Welfare Service for medical care benefits, he was rejected because the accident during the commute was not considered an accident while on duty. On the other hand, Article 29 of the “Enforcement Decree of the Industrial Accident Compensation Insurance Act” decrees that accidents that occur while using transportations provided by the employer are deemed accidents on duty. The plaintiff, therefore, insisted that Article 37 of the Act violates the principle of equality secured by the Constitution. The Constitutional Court decided that the Act is unconstitutional because there is no relevant reason to separate commuters into those taking transportation provided by employers and others.
C. Foreign, International, and Multilateral Relations
- Constitutional Complaint on GSOMIA with Japan (2016. 12. 6. – 2016 Hun-Ma 1007)
On December 6, the Constitutional Court dismissed the Constitutional complaint on the “Agreement Between the Government of Japan and the Government of the Republic of Korea on the Protection of Classified Military Information (GSOMIA).” The Court pointed out that it is necessary that the violated plaintiff’s fundamental rights be violated for the plaintiff to initiate a Constitutional complaint. Although the plaintiff insisted that some sections within the Ministry of National Defense are plotting invasive war by concluding the GSOMIA, the Court considered that the complaint is too vague to be discussed in terms of specific fundamental rights.
The impeachment bill of President Geun-hye Park, passed last December, made 2016 one of the most prominent years in the history of Korea. President Park was impeached in March 2017. The impeachment process made readily apparent problems in the Constitution, and it is inevitable that these will be discussed. I outline three.
First, it is important to discuss the weakening of the Korean “emperor-type” presidential system. It was convenient for presidents to take strong leadership decisions and propel the nation towards development in the period of authoritarian governments. Strong presidents, it seems, tend to give in to corruption. For instance, many of the former presidents were unable to spend their retirement peacefully as most of them and their families were accused of bribery. To prevent corruption, the parliamentary system may be an alternative to the presidential system. Since elections for National Assembly members and the president occur at different times, the Government often faces “cohabitation.” Two of the last three Korean administrations have experienced cohabitation, and the impeachment bill against the president was passed during both. Adopting a parliamentary government can help to improve the recurrent conflict between the legislative and executive branches, and smooth governance.
Second, it is questionable whether the Constitutional Court is qualified to decide on the impeachment of a president. Although the Justices of the Constitutional Court are co-selected by each government branch, they are not elected by the people. It might therefore seem inappropriate, for the Justices to decide on the impeachment of a popularly elected president. To optimize the institutional arrangement, the jurisdiction to impeach the president should be with a body that traces pedigree to the people.
Third, although not directly related to the impeachment of President Park, the conflict between the Constitutional Court and Supreme Court poses a difficult problem for Korean constitutional law. The conflict sometimes leads to situations where the fundamental rights of the people are disregarded. It is imperative that both courts learn to cooperate.
Chong Jong-Sup, Constitutional Litigation (Pakyoung Publishing 2006) (in Korean)
The Federal Constitutional Court, “Law on the Federal Constitutional Court” (Federal Law Gazette, 31 August 2015)
<http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__blob=publicationFile&v=1 >accessed March 29, 2017
Huh Young, Rules of Constitutional Litigation (Pakyoung Publishing 2006) (in Korean)
Korea Legislation Research Institute <http://elaw.klri.re.kr/kor_service/main.do> accessed 29 March 2017
Kwon Youngjoon, Constitutional Law: A Textbook (Bobmun Sa 2010) (in Korean)
Mizushima Leo, “Constitution-Compatible Interpretation in Comparative Perspective: Korea” (2017) 78 Comparative Law Journal 88 (in Japanese)
 The English version of the Constitutional Law of the Republic of Korea and the other Acts are available at the website of the Korea Legislation Research Institute: <http://elaw.klri.re.kr/kor_service/main.do> accessed 29 March 2017
 Byong-ro Min, “Current State and Tasks of Constitutional Review in Korea” in Hideyuki Ohsawa and Go Koyama (eds) American Constitution in East Asia (Keio University Press 2006) p. 84 (in Japanese)
 The English version of the German Federal Constitutional Court Act is available at the website of the German Federal Constitutional Court: <http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__blob=publicationFile&v=1> accessed 29 March 2017
 Leo Mizushima, “Constitution-Compatible Interpretation in Comparative Perspective: Korea” (2017) 78 Comparative Law Journal p.90 (in Japanese)
 Yong-Sung Kwon, Constitutional Law: A Textbook (Bobmun Sa 2010) p. 115 (in Korean)
 Although the Korean Constitutional Court considers that decisions of limited constitutionality and unconstitutionality are substantially similar, some scholars insist that the characteristics of both decisions are quite different. (e.g. Young Huh, Rules of Constitutional Litigation (Pakyoung Publishing 2006) pp. 181-185 (in Korean); Jong-sup Chong, Constitutional Litigation (Pakyoung Publishing 2006) p. 304 (in Korean))
 Improper Solicitation and Graft Act is also called the “Kim Young-ran Act” because the bill was initially introduced by Young-ran Kim, former chairperson of the Anti-Corruption and Civil Rights Commission.