Constitutional Court to Review Unconstitutionality of Revised Corruption Investigation Office Act Abolishing Opposition Veto Power... Decides to Refer for Main Trial

Legal Community Expects Constitutional Court to 'Dismiss' After Launch of Public Corruption Investigation Office
Principle of 'Prospective Effect' Even if Unconstitutional Ruling Issued... Exceptions Exist
Attention on Judgment Details to Be Included in Constitutional Court's Decision Document

Yoo Sang-beom, a member of the People Power Party, is explaining an amendment to the Partial Amendment Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials at the plenary session held at the National Assembly on the 10th of last month.

[Asia Economy Reporter Choi Seok-jin] The Constitutional Court has decided to formally review the constitutionality of the amended Public Officials Corruption Investigation Office (PPCIO) Act, which nullifies the opposition party's veto power in the recommendation process for the PPCIO chief candidate.

According to the Constitutional Court on the 15th, the First Designated Bench (Justices Yoo Nam-seok, Lee Eun-ae, Kim Ki-young) decided on the 12th to refer the constitutional complaint filed by Yoo Sang-beom, a member of the People Power Party, against President Moon Jae-in to the main trial. Yoo claimed that “Article 6, Paragraph 7 of the amended PPCIO Act violates the spirit of the Constitution and undermines the rule of law.”

The relevant provision originally required the recommendation committee for the PPCIO chief candidate (Recommendation Committee) to have the approval of at least six members, but was amended to relax the quorum to “approval by two-thirds of the total members,” allowing a resolution even without the consent of the two opposition party members among the seven recommendation committee members.

Yoo filed the constitutional complaint at the end of last year, arguing that “the amended PPCIO Act is unconstitutional both in terms of the procedural process of its passage and its substantive content.”

As Yoon Ho-jung, chairman of the National Assembly's Legislation and Judiciary Committee and a member of the Democratic Party of Korea, stated in the rationale for the proposed amendment, the law was passed with serious procedural flaws, such as ignoring the opposition party's proposal for in-depth discussion and pushing the bill through the plenary session without proper debate, relying on the ruling party's majority seats under the pretext of “the prompt launch of the PPCIO.”

In particular, the veto power clause in Article 6, Paragraph 5 of the PPCIO Act before the amendment was a minimum and core provision to ensure the political neutrality and investigative independence of the PPCIO by allowing the appointment of a more neutral and capable person as the PPCIO chief, rather than someone favored by the government and ruling party. However, when procedural obstacles arose in appointing the ruling party's preferred candidate as PPCIO chief, despite repeatedly emphasizing that “a person opposed by the opposition party cannot become the PPCIO chief,” the ruling party reversed its stance 180 degrees and passed the amendment by leveraging its majority seats, and President Moon immediately promulgated it, according to Yoo's claim.

This constitutional complaint case is a “statutory complaint” filed when a law directly infringes on fundamental rights. The fact that the designated bench passed the preliminary review before the main trial means that the requirements for the constitutional complaint, such as standing and the possibility of fundamental rights infringement, have been met.

However, the main trial result of the Constitutional Court is likely to come after the formal launch of the PPCIO.

Nevertheless, at the end of last year, the Recommendation Committee, according to the amended provision, recommended two candidates for PPCIO chief: Kim Jin-wook, senior researcher at the Constitutional Court, and Lee Geon-ri, vice chairman of the Anti-Corruption and Civil Rights Commission. Kim was nominated as the final candidate and is scheduled for a confirmation hearing on the 19th.

Even if the Constitutional Court rules the amended PPCIO Act unconstitutional, the principle of “prospective effect” applies, meaning the law loses effect from the date of the decision, so the candidate recommendation is not automatically invalidated.

However, the Constitutional Court recognizes exceptions to the prospective effect for unconstitutional decisions on laws other than criminal laws under Article 47, Paragraph 2 of the Constitutional Court Act, and can issue decisions canceling unconstitutional public authority acts that infringe fundamental rights while accepting constitutional complaints. Therefore, it is not impossible that the recommendation of candidate Kim could be invalidated, requiring the Recommendation Committee to recommend candidates again with the approval of at least six members under the pre-amendment provision.

In addition to this constitutional complaint case on the amended PPCIO Act, the Constitutional Court is also reviewing other constitutional complaints and provisional injunction applications filed earlier regarding the PPCIO Act itself.

Legal circles generally believe that the Constitutional Court is unlikely to rule the PPCIO Act or the amended PPCIO Act unconstitutional at a time when the government is on the verge of launching the PPCIO, a key policy.

However, attention is focused on how the Constitutional Court will address in its decision: ▲ how to define the constitutional status of the PPCIO, which lacks a constitutional basis for establishment; ▲ what logic will be used to deny discrimination despite investigative agencies differing based on social status; and ▲ how to evaluate the Democratic Party's amendment of key provisions guaranteeing the PPCIO's political neutrality and investigative independence through power politics in the amended PPCIO Act.

Yoo stated on his Facebook page the day before, “The Constitutional Court's decision to refer the case means that the amendment to the PPCIO Act, which was forcibly passed by the Democratic Party, has sufficient necessity to dispute its constitutionality,” adding, “The judiciary must not yield to unfair interference and pressure from the current administration and should make an objective and fair judgment based solely on legal principles.”

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