Constitutional Court Injunction Decision Likely No Show Before Disciplinary Committee... Possible to Request Constitutional Review During Disciplinary Cancellation Lawsuit

Constitutional Court of Korea, Jaedong, Jongno-gu, Seoul.
[Photo by Yonhap News]

[Asia Economy Reporter Choi Seok-jin] With the disciplinary committee for Prosecutor General Yoon Seok-yeol just two days away, the prevailing view is that the provisional injunction to suspend the enforcement of the disciplinary committee provisions in the Prosecutor Disciplinary Act, filed alongside Yoon's constitutional complaint, is unlikely to be issued before the committee convenes on the 10th.

However, if the disciplinary committee passes a resolution and an actual disciplinary action is taken, it is expected that Yoon will file a cancellation lawsuit against it and subsequently request a constitutional review, prompting the Constitutional Court to assess the unconstitutionality of the relevant provisions.

On the 8th, a Constitutional Court research officer, Mr. A, stated, “Considering the Constitutional Court’s process, which takes some time even for the designated panel to decide whether to refer the case to the full bench, it seems physically difficult for a provisional injunction decision to come out today or tomorrow,” adding, “The Constitutional Court would also find it burdensome to rush a decision on such a sensitive matter.”

Mr. A also said, “Once the disciplinary committee convenes and a disciplinary action is taken, a constitutional complaint with prospective effect essentially loses its meaning,” and predicted, “It is highly likely that a cancellation lawsuit will be filed later, seeking a constitutional review to determine unconstitutionality.”

If the Constitutional Court accepts Yoon’s provisional injunction request and suspends the enforcement of the relevant legal provisions before the disciplinary committee convenes on the 10th, the committee would not be able to proceed; however, realistically, this possibility is very slim.

Unlike courts that interpret and apply laws, the Constitutional Court’s rulings on the unconstitutionality of laws bind all state institutions, including the courts.

Therefore, if the Constitutional Court accepts Yoon’s constitutional complaint claiming that the disciplinary committee, composed of members appointed and commissioned by the minister who holds the right to request disciplinary action against the Prosecutor General, infringes on the Prosecutor General’s right to hold public office and equality rights, the committee can no longer be convened based on the relevant provisions.

However, since the Constitutional Court Act generally applies prospective effect rather than retroactive effect except for rulings on criminal law provisions, even if the Court later accepts the constitutional complaint after a disciplinary action against Yoon is taken, it will be difficult for Yoon to receive immediate relief.

Ultimately, if the disciplinary committee, as requested by Justice Minister Choo Mi-ae, passes a resolution for severe disciplinary measures such as dismissal or removal against Yoon and President Moon Jae-in enforces it, Yoon will immediately file a lawsuit seeking cancellation of the disciplinary action and apply for a suspension of enforcement. Given that the principle of judicial prerequisite (where the outcome of the cancellation lawsuit depends on whether the relevant provisions of the Prosecutor Disciplinary Act are unconstitutional) is met, Yoon can request the court to refer the constitutional review to the Constitutional Court.

If the trial court handling the cancellation lawsuit accepts Yoon’s request for a constitutional review and refers the matter to the Constitutional Court, the court proceedings will automatically be suspended until the Constitutional Court issues its ruling. If the trial court dismisses Yoon’s request, Yoon can directly seek a constitutional review through a constitutional complaint under Article 68, Paragraph 2 of the Constitutional Court Act (so-called constitutional complaint).

The issue is that Yoon’s term has only a few months remaining. Considering that it takes a considerable amount of time for the cancellation lawsuit to be finalized by the Supreme Court or for the Constitutional Court to issue a ruling on unconstitutionality, the court’s decision on whether to grant the suspension of enforcement, which Yoon will apply for alongside the cancellation lawsuit, is likely to determine whether Yoon can continue to serve as Prosecutor General during the remainder of his term.

This content was produced with the assistance of AI translation services.