[Law & Story] Supreme Court-Constitutional Court Clash Over 'Limited Unconstitutionality'... National Assembly Must Step In

Seokjin Choi, Legal Affairs Specialist Reporter.

[The Asia Business Daily Seokjin Choi, Legal Affairs Specialist Reporter] The Supreme Court and the Constitutional Court have clashed again over the issue of 'limited unconstitutionality' rulings on laws, marking the first such confrontation in 25 years. In 1997, the Constitutional Court issued a limited unconstitutionality decision on Article 68, Paragraph 1 of the Constitutional Court Act, which excluded 'trials' from the scope of constitutional complaints, and overturned a Supreme Court ruling. Recently, the Constitutional Court overturned a Supreme Court decision that denied a retrial in a case where the Supreme Court had issued a ruling contrary to the Constitutional Court's limited unconstitutionality decision regarding the bribery provisions of the Criminal Act.

The controversy centers on whether the Constitutional Court can declare a law unconstitutional in its interpretation or application-without changing the text of the law-through a 'limited unconstitutionality' ruling. The Constitutional Court maintains that, since it has the authority to rule an entire law unconstitutional, it naturally has the authority to rule parts of a law unconstitutional as well. On the other hand, the Supreme Court firmly believes that, under the Constitution, the authority to interpret and apply laws is exclusively vested in the courts, with the Supreme Court at the top, and thus, such limited unconstitutionality rulings violate the principle of separation of powers.

The courts have accepted some types of 'quantitative' partial unconstitutionality rulings issued by the Constitutional Court in the past, such as those declaring only part of a specific provision unconstitutional. The problem arises with 'qualitative' partial unconstitutionality rulings, or limited unconstitutionality decisions, which take the form of statements like, "Unconstitutional as interpreted in this way" or "Unconstitutional as applied in this context," without any change to the wording of the law. Perhaps aware of this controversy, the Constitutional Court used the terms 'partial unconstitutionality' or 'some unconstitutionality' in this case, but in substance, it is a limited unconstitutionality decision-an approach the Court has previously refrained from using.

What is clear is that neither institution has any intention of abandoning its long-held position. In this situation, a petitioner who files a constitutional complaint with the Constitutional Court and receives a decision overturning a Supreme Court conviction may ultimately have no recourse if the courts reject a retrial. In fact, 25 years ago, a petitioner who was taxed under an unconstitutional provision of the Certified Tax Accountant Act went back and forth between the Constitutional Court and the courts, requesting that the courts rule in accordance with the Constitutional Court's decision, but was ultimately denied relief.

This case concerns a petition filed in 2014 that the Constitutional Court left pending until after the petitioners had received final guilty verdicts and served their sentences. The Constitutional Court then issued its decision regarding the court's rejection of their retrial request. If this decision had been rendered while the defendants were still on trial, a serious controversy could have arisen over whether the defendants, detained under the provision the Constitutional Court found to be unconstitutional, should have remained in detention or been released immediately.

Experts have proposed two possible solutions to the current situation. The first is for the Constitutional Court to declare unconstitutional the phrase "excluding court judgments" in Article 68, Paragraph 1 of the Constitutional Court Act, which excludes court judgments from the scope of constitutional complaints. If this happens, the provision declared unconstitutional would be deleted from the law, allowing the Constitutional Court to overturn court judgments.

However, this would undermine the legislative intent of excluding court judgments from constitutional complaints to maintain checks and balances and a division of roles between the Constitutional Court and the Supreme Court. There are concerns that the Constitutional Court could effectively become a fourth instance of trial, thereby controlling even the final judgments of the courts.

Another possible solution is to revise the provision that gives binding force to the Constitutional Court's unconstitutionality decisions over other state agencies to specify that "unconstitutionality (including limited unconstitutionality) decisions" are binding, or to explicitly add to Article 68, Paragraph 1 of the Constitutional Court Act that court judgments, except those that contravene the binding force of the Constitutional Court's unconstitutionality or limited unconstitutionality decisions, are excluded.

Ultimately, the decision rests with the legislature. The National Assembly, which has been delegated authority by the people, must step in to resolve the current situation, which neither institution has been able to address and for which there is no sign of resolution.

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