‘Bold Change’ vs ‘Maximum Caution’... The Departure of Two Supreme Court Justices

‘Specific Validity’ Justice Kim Seonsu of the Supreme Court
“Policy decisions must respond to changing times
and boldly change precedents when necessary”

On the 1st, Kim Seonsu (63, Judicial Research and Training Institute class 17) and Lee Dongwon (61, class 17), Supreme Court Justices who have been regarded as representatives of progressives and conservatives over the past six years, retired from the Supreme Court.

On the same day, the two justices expressed starkly contrasting positions at their retirement ceremony. Justice Kim stated, “A Supreme Court Justice must be able to make policy judgments that respond to changes in the times,” adding, “When necessary, one must have the boldness to make decisions to overturn precedents.”

[Image source=Beomryul Newspaper]

Justice Lee, on the contrary, said, “Maintaining legal stability so that the public can live predictable lives is what the court must do,” and emphasized, “When expressing the content of the law differently from what was previously declared through new interpretations, utmost caution must be exercised.”

The positions of these two justices represent the debate between ‘concrete validity’ and ‘legal stability,’ which inevitably conflict and oppose each other in the interpretation and application of the law. They led the majority and dissenting opinions in the Supreme Court’s full bench cases, advocating for ‘bold precedent changes’ and ‘utmost caution,’ respectively.

A representative ruling is the full bench decision on the 18th of last month, which recognized the health insurance dependent qualification of same-sex partners. In this case, Justice Kim served as the presiding justice and led the majority opinion, while Justice Lee issued a separate (dissenting) opinion.

There are also cases of opposition. In the Supreme Court full bench ruling that it is not considered ‘discriminatory treatment’ prohibited by the Labor Standards Act to withhold allowances such as longevity pay and performance bonuses from public sector indefinite-term contract workers, unlike public officials, Justice Kim issued a dissenting opinion. At that time, the majority opinion, which included Justice Lee, held that indefinite-term contract workers and public officials do not belong to the same group of workers, so they cannot be considered a comparable group.

However, through his dissenting opinion, Justice Kim stated, “The comparable workers should be judged based on whether they perform the same or similar types of work, so public officials can be considered comparable workers, and the employment status of indefinite-term contract workers corresponds to a social status,” adding, “There is no rational reason for not paying family allowances and performance bonuses to them, so damages corresponding to each allowance must be compensated.”

Historically, dissenting opinions in the Supreme Court have mostly been ‘progressive dissenting opinions’ in situations where conservatives were the majority, such as in conscientious objection to military service cases. However, Justice Lee issued many ‘conservative dissenting opinions’ emphasizing legal stability in situations where progressives were the majority.

A current senior judge said in a phone interview with Law Times on the 1st, “Concrete validity and legal stability are inevitably in conflict, but ultimately they must be compromised and harmonized. Through this, the ideals and purposes of law?justice and respect for human dignity?are realized.”

Park Suyeon, Law Times Reporter

※This article is based on content supplied by Law Times.

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