[Legal Issue Check] Debate Over the "Fourth Instance" Constitutional Complaint Against Court Rulings

The Democratic Party of Korea is pushing for a legislative amendment as part of judicial reform to allow constitutional complaints against court rulings.

While most judges, including Supreme Court Justice Cheon Daeyeob, who heads the National Court Administration, strongly oppose the idea, arguing that constitutional complaints against court rulings would effectively introduce a "fourth instance" of judicial review, the Constitutional Court maintains that its review is fundamentally different from the judiciary's fact-finding and legal review. The Constitutional Court emphasizes that its role is constitutional review, not a continuation of the existing three-tier court system.

National Assembly Main Chamber. Photo by Dongju Yoon

원본보기 아이콘

In simple terms, the Supreme Court’s position is that allowing the Constitutional Court to re-examine cases already finalized by the Supreme Court, the highest court in the three-tier judicial system, is tantamount to creating a fourth instance. On the other hand, the Constitutional Court argues that it would not be re-examining the facts or merits of the case, but rather determining from a constitutional perspective whether the trial process or application of the law violated the Constitution or statutes and thereby infringed on fundamental rights. Therefore, it insists this does not constitute a fourth instance.

A constitutional complaint is a system that allows citizens whose fundamental rights have been infringed by public authority to seek relief from the Constitutional Court. Under the Constitutional Court Act, there are two types of constitutional complaints: the so-called rights-protection constitutional complaint (Article 68, Paragraph 1), which allows individuals to request a review when their fundamental rights are infringed by an act or omission of public authority, and the constitutional review complaint (Article 68, Paragraph 2), which allows individuals to request the Constitutional Court’s judgment when a court rejects a motion for a constitutional review of a law. The current debate concerns the former-whether to allow constitutional complaints against court rulings.

Regarding constitutional complaints, Article 111, Paragraph 1, Subparagraph 5 of the Constitution stipulates that "adjudication on constitutional complaints as prescribed by law" falls under the jurisdiction of the Constitutional Court. Article 113, Paragraph 1 provides only that "a decision to grant a constitutional complaint requires the approval of at least six Justices." Ultimately, the specific details of the constitutional complaint system, including its scope, are delegated to statute.

Pursuant to this constitutional delegation, Article 68, Paragraph 1 of the Constitutional Court Act states, "Except for court rulings, any person whose fundamental rights guaranteed by the Constitution have been infringed by an act or omission of public authority may request a constitutional complaint adjudication from the Constitutional Court," thereby explicitly prohibiting constitutional complaints against court rulings.

In this way, the legislature, in enacting the Constitutional Court Act, categorically excluded court rulings from the scope of constitutional complaints. There are several reasons for this exclusion, but the most fundamental is that, while administrative acts by government agencies or legislative acts by the National Assembly can potentially infringe on fundamental rights, judicial acts are fundamentally intended to protect those rights. For example, administrative actions such as imposing taxes or expropriating land may infringe on property or other fundamental rights, and the enactment or amendment of laws by the National Assembly may also infringe on certain citizens’ rights. In contrast, the courts are seen as protectors of fundamental rights through their rulings.

Constitutional Court, Jaedong, Jongno-gu, Seoul. Photo by Kang Jinhyung

원본보기 아이콘

Since the Constitutional Court was established in 1988, there has been subtle tension between the Supreme Court and the Constitutional Court over which is the highest judicial authority. This tension came to the fore in 1997, when the Constitutional Court issued a limited unconstitutionality decision regarding Article 68, Paragraph 1 of the Constitutional Court Act.

The issue began with the Constitutional Court’s use of "limited unconstitutionality" in its rulings. When a provision is not unconstitutional per se but would be unconstitutional if interpreted in a certain way, the Court issues a decision stating, "It is unconstitutional insofar as it is interpreted as...". The Court explained that, rather than declaring a law completely void, it was more respectful and considerate toward the National Assembly, the representative body of the people, to maintain the law’s effect while eliminating only the unconstitutional interpretation.

However, the Supreme Court did not recognize the binding effect of such decisions. It argued that the Constitution empowers the Constitutional Court only to determine the constitutionality of statutes, and, more importantly, that the Supreme Court retains the final authority to interpret the law. Therefore, the Constitutional Court cannot impose a particular interpretation on the courts.

Despite the Constitutional Court’s argument that the authority to interpret statutes is a prerequisite for determining their constitutionality, in practice there was no way to compel the courts, which adjudicate specific cases, to follow the Constitutional Court’s decisions.

In 1996, the Supreme Court ruled in accordance with its own precedent, contrary to the Constitutional Court’s limited unconstitutionality decision regarding the Income Tax Act. The Constitutional Court, seeking to invalidate the Supreme Court’s ruling that disregarded its decision, ultimately issued a limited unconstitutionality decision on Article 68, Paragraph 1 of the Constitutional Court Act, which prohibited constitutional complaints against court rulings. The ruling stated, "Article 68, Paragraph 1 of the Constitutional Court Act is unconstitutional insofar as it is interpreted to include ineligible court rulings-those that apply statutes whose effect has been lost by a Constitutional Court decision of unconstitutionality and thus infringe on fundamental rights." The Constitutional Court then annulled the Supreme Court’s ruling that had disregarded its own decision.

As a result of this process, constitutional complaints against ordinary court rulings are not permitted in South Korea today. However, an exception is made for cases where a court applies a statute that has lost its effect due to a Constitutional Court decision of unconstitutionality; in such cases, a constitutional complaint may be filed.

Supreme Court, Seocho-gu, Seoul.

원본보기 아이콘

Whether constitutional complaints against court rulings should be allowed remains a contentious issue in both political and academic circles.

Historically, allowing such complaints aligns with the essential purpose of the constitutional complaint system. The proviso in Article 68, Paragraph 1 of the Constitutional Court Act states, "However, if there is another remedy provided by law, a constitutional complaint may be filed only after all such remedies have been exhausted," thus establishing the principle of subsidiarity. As a result, most administrative actions subject to administrative litigation cannot be challenged through a constitutional complaint, since alternative legal remedies are available. However, once a case has been adjudicated, constitutional complaints against court rulings are prohibited, depriving individuals of the opportunity to have the Constitutional Court review whether an administrative act infringed on fundamental rights.

Consequently, the function of the constitutional complaint system to protect citizens from unconstitutional exercises of public authority that infringe on fundamental rights has been severely restricted. In reality, aside from a few cases involving statutes, most constitutional complaints filed with the Constitutional Court concern prosecutors’ decisions not to indict. By contrast, in Germany, which served as a model for South Korea’s constitutional adjudication system, more than 90% of constitutional complaints filed with the Constitutional Court concern court rulings.

However, there are genuine concerns that fully allowing constitutional complaints against court rulings would overwhelm the Constitutional Court with a flood of cases. The Democratic Party’s proposed amendment seeks to limit such complaints to "finalized court rulings" and specifies three circumstances: when a court ruling infringes on fundamental rights by contravening a Constitutional Court decision; when a court ruling infringes on fundamental rights by failing to follow due process as prescribed by the Constitution or statutes; and when it is otherwise clear that a court ruling has infringed on fundamental rights by violating the Constitution or statutes. Nevertheless, parties or defendants dissatisfied with a final ruling may be tempted to file a constitutional complaint as a last resort, thinking there is nothing to lose.

Proponents of introducing constitutional complaints against court rulings argue that the problem can be managed by establishing a dedicated panel, such as the current designated panel that screens the admissibility of constitutional complaints, to summarily dismiss inadmissible cases without examining the merits. However, this screening process itself would impose a significant burden. Even in the current system, whether a fundamental rights violation has occurred is determined only after a substantive review. Therefore, individuals who lose their cases or are convicted are likely to claim in some way that the trial was flawed and their rights were infringed. This is why there is talk among lawyers that they stand to benefit from the introduction of such complaints.

Above all, another major concern is that the authority and public trust in the judiciary, especially Supreme Court rulings, could be undermined. Until now, parties who lost in the Supreme Court or were convicted had to accept the ruling unless there were grounds for retrial. If constitutional complaints against court rulings become a common remedy, the authority of Supreme Court decisions as the final judgment of the judiciary will inevitably be diminished.

According to the logic of the Constitutional Court and the Democratic Party, constitutional complaints against court rulings would not constitute a formal fourth instance in the judicial hierarchy. However, the fact that another institution could re-examine and potentially invalidate the judiciary’s final decision and interpretation of the law means that, in effect, it would become a "de facto fourth instance." Ultimately, the question of whether to introduce constitutional complaints against court rulings is a matter for national consensus, weighing the positive function of "strengthening the protection of fundamental rights"-that is, the possibility or likelihood that individuals whose rights were infringed by unconstitutional Supreme Court rulings could obtain relief-against the negative function of the confusion and cost that such a fundamental change in the judicial system would bring.

© The Asia Business Daily(www.asiae.co.kr). All rights reserved.