Constitution of the Republic of Korea (Constitutional Court)

Preamble and General Principles of the Constitution

• Preamble: proclaims succession to the March 1st Movement, to the legal legitimacy of the Provisional Government of the Republic of Korea, and to the democratic ideology of April 19, and declares as missions of the State the liberal and democratic basic order, peaceful reunification, and contribution to world peace and the international community of humankind
• Form of government: the Republic of Korea is a democratic republic; sovereignty resides in the people and all state authority emanates from the people (Article 1)
• Territory and reunification: the territory covers the Korean peninsula and its adjacent islands; the State pursues peaceful reunification based on the liberal and democratic basic order (Articles 3 and 4)
• International order: renunciation of aggressive war, efforts to maintain international peace, and recognition of the domestic effect of treaties and international law (Articles 5 and 6)
• State organization and culture: responsibility and political neutrality of public officials, party system and guarantee of multiparty democracy, obligation to succeed to and develop national traditions and culture (Articles 7 to 9)

Fundamental Rights and Duties of Citizens

• Human dignity and the right to pursue happiness: obligation to guarantee inviolable fundamental rights (Article 10)
• Right to equality: prohibition of any discrimination in all fields on grounds such as sex, religion, or social status, and rejection of privileged classes (Article 11)
• Bodily and procedural rights: due process of law, principle of warrants issued by a judge, prohibition of torture and coerced confessions, right to assistance of counsel, presumption of innocence, prohibition of double jeopardy, prohibition of retroactive laws (Articles 12 to 13 and 27)
• Freedoms: freedom of residence and movement, freedom to choose one’s occupation, inviolability of domicile, privacy and communications, freedom of conscience and religion, freedom of expression and the press, freedom of assembly and association, freedom of scientific research and the arts (Articles 14 to 22)
• Right to property: guaranteed but must conform to the public interest; in case of expropriation or restriction for public necessity, just compensation is required (Article 23)
• Political participation rights and right of petition: right to vote, right to hold public office, right of petition, right to trial (Articles 24 to 27)
• Basic social rights: right and duty to receive education, free compulsory education, right and duty to work and to proper working conditions, right to organize and to act collectively, right to a life worthy of human beings, social security, right to the environment, protection of marriage and family, right to health (Articles 31 to 37)
• Protection of persons who have rendered meritorious services to the State and of victims: State liability, criminal compensation, relief for crime victims, protection of the socially vulnerable (Articles 28 to 30 and 34 to 36)
• Limitations on fundamental rights: statutory reservation strictly necessary for national security, maintenance of order, or public welfare; prohibition on infringing upon the essence of rights (Article 37)
• Duties of citizens: duty to pay taxes, duty of national defense, and prohibition of discrimination based on performance of military service (Articles 38 and 39)

Organization and Powers of the National Assembly and the Government

• National Assembly: unicameral, four‑year term of office; functions of legislation, examination of the budget and approval of final accounts, approval of treaties, declarations of war and dispatch of the armed forces, oversight and investigation of state affairs, motion to remove the Prime Minister and Ministers of State, and right of impeachment (Articles 40 to 65)
• Legislative procedure: submission of bills (by members of the Assembly or by the Government), adoption by the Assembly → promulgation by the President; if a bill is returned for reconsideration or readopted, the law is finally established; if the President refuses or delays promulgation, the Speaker of the National Assembly promulgates the law (Articles 52 and 53)
• Budget and public finance: preparation and submission of the budget by the Government, examination and adoption by the Assembly, reserve funds and supplementary budgets, principle of legality in taxation, consent of the Assembly for government loans and contracts that impose financial burdens on the State (Articles 54 to 59)
• President: elected by direct universal suffrage for a single five‑year term; Head of State and head of the executive; powers concerning treaties, diplomacy, and command of the armed forces; emergency decrees and martial law; calling of referendums; appointment and dismissal of public officials, power of pardon and conferment of honors; acts of State must be countersigned by the Prime Minister or the relevant Ministers of State (Articles 66 to 85)
• Prime Minister, State Council, and ministries: the Prime Minister assists the President and directs the ministries; the State Council deliberates on important state policies; Ministers are appointed from among the members of the State Council and may issue Prime Ministerial decrees and ministerial ordinances (Articles 86 to 96)
• Advisory and consultative bodies: provisions on the establishment of the Advisory Council of Elder Statesmen, the National Security Council, the National Unification Advisory Council for Democratic Unification, and the National Economic Advisory Council (Articles 90 to 93)
• Board of Audit and Inspection: placed under the authority of the President, responsible for auditing accounts and conducting inspections; the results of auditing the budget accounts are reported to the President and to the National Assembly (Articles 97 to 100)

Judiciary and Constitutional Jurisdictions

• Courts: composed of the Supreme Court and courts of various instances; independence of judges and guarantee of their status; realization of the right to a trial; possibility of administrative pre‑trial procedures (Articles 101 to 109)
• Supreme Court: highest judicial body; final review of the constitutionality and legality of regulations, rules, and administrative actions; power to enact rules on procedure and internal discipline (Articles 102, 107, and 108)
• Military courts: exceptional courts; final appeals lie with the Supreme Court; under extraordinary martial law, certain cases may be finally adjudicated by military courts (Article 110)
• Constitutional Court (Constitution): composed of 9 Justices; has jurisdiction over the review of the constitutionality of statutes, impeachment, dissolution of political parties, competence disputes, and constitutional complaints; important decisions require the approval of at least 6 Justices (Articles 111 to 113)
• Powers provided by the Constitutional Court Act: specifies the five types of proceedings already listed in Article 111 of the Constitution, and details the organization (qualification requirements, appointment, term of office, and guarantees of status of the Justices) as well as the adjudication procedure (panels, quorum, taking of evidence, final decisions, prohibition of double adjudication, etc.)

The Five Major Types of Constitutional Review and Their Procedures

• Review of the constitutionality of statutes: an ordinary court refers to the Constitutional Court a question on the constitutionality of a statute that is decisive for its judgment; the Court’s decision is binding on all state organs and local governments; criminal statutes are in principle invalidated retroactively, with the possibility of reopening criminal judgments (Article 107 of the Constitution and Articles 41 to 47 of the Constitutional Court Act)
• Impeachment procedure: when high‑ranking public officials exercise their duties in an unconstitutional or unlawful manner, the National Assembly files an impeachment petition; the Constitutional Court decides on removal from office; removal does not preclude separate civil or criminal liability; disqualification from holding public office for 5 years (Articles 48 to 54)
• Procedure for dissolution of political parties: the Government may request the dissolution of a party that undermines the basic democratic order; a provisional measure suspending the party’s activities may be ordered if necessary; once dissolution is decided, the party is immediately dissolved and the National Election Commission executes the decision (Articles 55 to 60)
• Procedure for resolving competence disputes: resolution of disputes concerning the existence or scope of powers between state organs or between local governments; annulment or declaration of nullity of acts, and in cases of unconstitutional omission, imposition of a duty to act; decisions are binding on all organs (Articles 61 to 67)
• Individual constitutional complaint: may be filed where fundamental rights are infringed by the exercise or non‑exercise of public authority (in principle excluding court judgments) and when a request for referral of a constitutional question has been rejected; principle of subsidiarity and strict filing deadlines; system of court‑appointed counsel; a decision upholding the complaint annuls or declares unconstitutional the public authority act and enables the revision of subsequent decisions (Articles 68 to 75)

Nature and Role of the Constitutional Court

• History: established in 1988 with the entry into force of the Constitutional Court Act; first decision of unconstitutionality in 1989; establishment of a research institute and introduction of electronic filing; strengthening of international standing by taking a leading role within the AACC and hosting the World Congress on Constitutional Justice
• Organization: 9 Justices, including the President of the Constitutional Court; full bench and smaller panels; multi‑tiered organization comprising the Secretariat, the Constitutional Justice Research Institute, and the International Cooperation and Case Information Offices, responsible for adjudicative, research, and administrative functions
• Organ of safeguarding the Constitution: protects the constitutional order, separation of powers, and the basic democratic order through review of the constitutionality of statutes, impeachment, dissolution of political parties, etc.
• Organ for the protection of fundamental rights: ensures direct protection of fundamental rights, such as citizens’ freedoms and social rights, by eliminating or correcting unconstitutional statutes and public authority acts
• Organ for the control of state powers: exercises constitutional control over the National Assembly, the administration, the judiciary, political parties, and local governments to prevent abuses of power
• International role: founding of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) and hosting its research secretariat; contribution to the development of human rights and constitutionalism through exchanges with foreign constitutional jurisdictions

Individual Constitutional Complaint: Procedure and Practical Information

• Admissibility requirements: infringement of fundamental rights caused by the exercise or non‑exercise of public authority; prior exhaustion of other remedies (principle of subsidiarity); filing within a specified period (90 days from the date on which the complainant became aware of the infringement, and 1 year from the date on which the infringement occurred, etc.)
• Concept of public authority: includes both the exercise of authority by the State or local governments that imposes obligations on citizens or enforces them on the basis of legal provisions, and the non‑exercise consisting in failure to fulfill obligations imposed by the Constitution or statutes
• Scope of acts subject to complaint: includes cases where statutes, decrees, regulations, and other subordinate norms directly infringe fundamental rights; court judgments are in principle excluded (except where a judgment applies an unconstitutional statute)
• Procedure: filing of the complaint (in person, by mail, or via the electronic center), preliminary examination by a panel (dismissal for inadmissibility or referral to the full bench), proceedings on the merits and decision by the full bench
• Principle of mandatory representation by counsel: the constitutional complaint must be filed and conducted through an attorney (unless the complainant is an attorney)
• Court‑appointed counsel: appointment of an attorney remunerated from public funds for indigent persons; detailed conditions regarding income, status as a social assistance beneficiary, disability, or special circumstances; possibility of exceptional appointment for reasons of public interest
• Electronic Constitutional Justice Center: electronic filing and service of documents based on online registration and authentication, improving the speed and accessibility of proceedings through rules on electronic registration, filing and service dates, and access to electronic case files
• Costs: in principle, procedural costs are borne by the State; certain evidentiary costs and security deposits for constitutional complaints may be charged to the complainant