[Law Catalyst] The Courts After the Introduction of the Constitutional Complaint System

The Importance of Change in the Courts and Diversity at the Constitutional Court Grows

"A judge who writes excellent civil law rulings is considered a master, a judge who writes excellent criminal law rulings is considered competent, but a judge who brings the Constitution into rulings is someone to watch out for..."

This was a remark made by a legal professional to a reporter. The point was that civil law is like a "small, precise blade," and the ability to handle it skillfully is regarded as true expertise among judges. The Constitution, on the other hand, is considered a "large and blunt sword," so judges who cite constitutional provisions in court rulings may be misunderstood as being politically inclined or, in other words, as attention-seekers.

In actual court rulings at the trial level, the Constitution rarely appears. This is because there is a separate process for constitutional review, and it is widely accepted that the Constitutional Court has the final say in interpreting the Constitution. It is also customary for courts to conduct trials based on Supreme Court precedents, presuming that subordinate laws are in accordance with the Constitution. A presiding judge at a Seoul district court said, "A ruling is about establishing the concrete facts and interpreting the law, but if the Constitution is brought in, the scope of judgment can become disproportionately broad for the individual case." For judges already struggling with a backlog of cases, a constitutional review can seem like an overreach of authority.

However, the introduction of the constitutional complaint system is marking a turning point. A constitutional law expert commented, "With the adoption of the constitutional complaint, an era is beginning where all judges will have to pay attention to the Constitution." In order to prevent the embarrassment of a final ruling being overturned by the Constitutional Court after the fact, it is expected that judges will proactively scrutinize the consistency of their decisions with basic rights and other constitutional principles at every stage, from the first trial to the Supreme Court.

There has already been such a forward-looking attempt. In December last year, the Seoul Administrative Court ruled that a provision of the Inheritance and Gift Tax Act Enforcement Decree related to "small building appraisal" was "unconstitutional and therefore invalid." This ruling, which explicitly cited both illegality and unconstitutionality, was widely discussed in and outside the legal community as an unusual decision. In addition, with the Constitutional Court designating Green Cross's "vaccine bid-rigging allegation" case as the first constitutional complaint case, a healthy tension and system of checks and balances between the Constitutional Court and the Supreme Court is also anticipated. If a broad-based approach to considering basic rights from the first trial to the Supreme Court takes root, this too will be a positive development.

The key lies with those who interpret and apply these signals of change. Even if the system is in place, there are concerns that, rather than fostering healthy checks and balances, the courts and the Constitutional Court may instead converge tacitly. This is because the composition of the Constitutional Court and the Supreme Court is itself highly homogeneous. At present, the nine Constitutional Court justices include four with a progressive orientation (Kim Sanghwan, Oh Youngjun, Jung Gyesun, Ma Eunhyuk), three conservatives (Jung Hyungsik, Cho Hanchang, Kim Bokhyung), and two moderates (Kim Hyungdoo, Jung Jungmi); yet, all nine, including Cho Hanchang, who briefly worked as a lawyer, are former judges. There have been ongoing criticisms about the lack of diversity and representation in the judiciary, as both institutions, vested with great authority, are composed exclusively of individuals from one professional background. If decisions are monopolized by those who have spent their entire careers in the same organizational culture, it becomes difficult to reflect a range of social perspectives.

In the end, bringing the Constitution into judicial rulings still depends not on an institutionalized practice, but on the individual judge's intense deliberation and resolve. For the constitutional complaint system to truly serve as a catalyst for judicial advancement, the composition of those operating the system must first change. It is urgently necessary to break the longstanding practice of appointing only career judges as Constitutional Court justices and to greatly diversify backgrounds to include prosecutors, private-sector attorneys, and constitutional scholars, thereby establishing a healthy heterogeneity between the two institutions. Until then, courageous decisions to include the Constitution in court rulings will likely continue to be labeled as "exceptional" for a long time to come.

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