The Basic Principles of Constitutional Adjudication in S. Korea

(韓國の憲法裁判の基本原理)

Shin, Pyung*

Ⅰ. Introduction(序說)

Historically the Korean people had suffered from Asian-style hereditary autocracy and absolute poverty until the end of world war Ⅱ. But beginning from early 1960s economic development started, so it had reaped great results in every sphere of industry. Gradually the desire for democracy and individual human rights seemed to be stronger. The result was that the conflict over preferred values  in Korean society became more and more to be serious.

The current Constitution, the 6th Republic Constitution is the product of a compromise between 2 greatly influential  power blocs of Korean society divided over preferred values, democracy or economic development. The Constitution incorporated with Korean people's yearning and aspiration for democratization was improved especially, compared to the previous  Constitution on several specific contents from direct presidential electoral system to weakening of president's powers and to adopting Constitutional Court. Now we can say that constitutional adjudication system by Constitutional Court is one of the most precious fruits of Korean democratization ever.

* Prof. of School of Law, Kyungpook National Univ. in S. Korea; Attorney at Law; Ph. D

It is general to call the current constitutional government the 6th Republic, starting at the 1st Republic established after Japanese colonial rule and American military administration,

As you know, constitutional adjudication is a legal practice for restoring constitutional basic values impaired by many social conflicts and thus giving normative and practical force to the Constitution thereby safeguarding human rights above all. Overall worldwide, there are two types of constitutional adjudication system, American style and European style. American style means that ordinary courts have the authority to review constitutionality of the legislation by the parliament. However, in European countries it seemed inappropriate for ordinary courts to review constitutionality of a statute enacted by the Legislature generally representing people's will. So the review of legislation, constitutional or not, has been entrusted to on Constitutional Court independent from ordinary courts. We could say in our Korean past experiences that Constitutional Court is far more effective and strong in keeping the supremacy of the Constitution and basic human rights than ordinary courts.

In historic Marbury v. Madison case of 1803, the American Supreme Court declared that the government activities incompatible with the Constitution are void and with the power bestowed upon it to interpret the Constitution it could judge whether a statute enacted by the Legislature was unconstitutional or not. Anyway the American system of constitutional adjudication took roots since then.

In 1919 Austrian Constitutional Court began to function on the matters of not only  constitutional reviews of legislation but also constitutional complaints on which administrative violations of basic human rights could be challenged. After World War Ⅱ beginning in Germany the Constitutional Court system was spread to many parts of Europe and worldwide.

The Korean Constitutional Court began to start functioning from September 1, 1998. As of March 31, 2006 it docketed 12,717 cases and disposed of 11,902 among them, including 299 cases where laws and regulations were held unconstitutional and 237 cases where exercises of governmental acts were held to be infringing on basic human rights so that they were nullified. Once I predicted that if constitutional court could have the power or momentum to function vigorously, the Korean society go on the way to the stable and matured society where ideals and realities get coordination swiftly. Now I am confident that this prediction has been obviously right.

From a table made by Korean Constitutional Court on adjudicated cases accumulated from Sep. 1, 1998 to Mar. 31, 2006. On internet the web-site presenting the table is http://www.ccourt.go.kr/intro/c1_sub02.html

Refer to 申 平, “韓國の憲法裁判所,”「ジュリスト」954號(1990年4月15日), 114面.

According to Article 111 (1) of the current Constitution, the Constitutional Court of S. Korea has the jurisdiction over ① constitutional review of statutes, ② impeachment ③ party dissolution, ④ competence disputes between state agencies, between a state agency and a local government, or between local governments, ⑤ constitutional complaints. I will explain it in more details as follows.

① Constitutional Review of Statutes(違憲法律審査)

Pursuant to Article 111 (1) (ⅰ) of the Constitution and Article 41 of the Constitutional Court Act, the Constitutional Court can adjudicate on the constitutionality of a law upon the request of ordinary courts. And Article 68 (2) of the Constitutional Court Act also provides a party to a trial an opportunity to obtain constitutional review of the statute at issue by filing a constitutional complaint when its motion for constitutional review is rejected by the presiding ordinary court. So we have two forms of constitutional review of statutes but the procedures and results are almost the same.

Article 111 of the Constitution

(1) The Constitutional Court shall have jurisdiction over the following matters:

ⅰ. The constitutionality of a law upon the request of the courts

Article 41 of Constitutional Court Act (Request for Adjudication on the Constitutionality of Statutes)

(1) When the issue of whether or not statutes are constitutional is relevant to the judgment of the original case, the ordinary court (including the military court; hereinafter the same shall apply) shall request to the Constitutional Court, ex officio or by decision upon a motion by the party, an adjudication on the constitutionality of statutes.

(2) ……(3) ……

(4) No appeal shall be made against the decision of the ordinary court on the request for adjudication on the constitutionality of statutes.

(5) When an ordinary court other than the Supreme Court makes a request referred to in paragraph (1), it shall do so through the Supreme Court.

Article 68 of the Constitutional Court Act (Causes for Request)

(1) ……

(2) If the motion made under Article 41 (1) for adjudication on constitutionality of statutes is rejected, the party may file a constitutional complaint with the Constitutional Court. In this case, the party may not repeatedly move to request for adjudication on the constitutionality of statutes for the same reason in the procedure of the case concerned.

② Impeachment(彈劾)

The system of impeachment is aimed at protecting the constitution by holding President and other high officials accountable for their legal duties through a special process of indictment. The current Constitution gives the National Assembly the power to initiate the impeachment process through indictment in Article 65 (1) and grants the Constitutional Court the power to adjudicate finally on the impeachment by Article 111 (1) ⅱ.

Article 65

(1) In case the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and other public officials designated by Act have violated the Constitution or other Acts in the performance of official duties, the National Assembly may pass motions for their impeachment.

Article 111

(1) The Constitutional Court shall have jurisdiction over the following matters:

ⅰ. ……

ⅱ. Impeachment

③ Dissolution of Political Parties(政黨解散)

The system of dissolving political parties functions as a means to defend for the basic order of free democracy. Article 8 (4) of the Constitution provides that "if the purposes or activities of a political party are contrary to the fundamental democratic order, the government may bring an action for its dissolution in the Constitutional Court, and the political party shall be dissolved in accordance with the decision of the Constitutional Court."

As you might know it is related to the concept of defensive democracy or militant democracy which means that even democracy can't bear an idea or a person if it or he poses threats to democracy, that is, democracy has the own tight to defend or protect itself against critically harmful anti-democratic ideas and persons. After World War Ⅱ it was introduced originally to West Germany Basic Law and spread to other nation's constitution.

④ Competence Dispute(機關間の權限爭議)

Competence dispute is aimed at facilitating the operation of state agencies by clarifying the scope and characteristic of powers allocated to them and protecting the normative force of the Constitution by coordinating the powers appropriately. The Constitution grants the Constitutional Court the power to adjudicate competence dispute between state agencies, between a state agency and a local government, or between local governments.

Article 111

(1) The Constitutional Court shall have jurisdiction over the following matters:

ⅰ. ……

ⅳ. Competence disputes between State agencies, between State agencies and local governments, and between local governments

⑤ Constitutional Complaint(憲法訴願)

Constitutional complaint is aimed at protecting people's basic human rights from wrong and unconstitutional exercises of governmental power and allows people to petition for constitutional review of those exercises. Constitutional complaint serves both a subjective function of providing relief to individuals whose rights are infringed unconstitutionally and an objective function of checking unconstitutional exercises of governmental power and thus upholding the constitutional order. And as I already mentioned, aside from the ordinary, remedial form of constitutional complaint, the Constitutional Court has the authority to adjudicate the case filed by a petitioner whose  motion for constitutional review of a law is rejected by ordinary court presiding original case.

Refer to ① of this chapter.

Premised on overall explanations about Korean constitutional adjudication system, from now on I'd like to introduce you the basic principles on which Korean constitutional adjudication system is actually functioning. These might be very helpful to better understand the characteristics of the system.

Ⅱ. Concrete Norms Control(具體的規範統制)

'Norms Control'(規範統制) means the practice of controlling the statutes, regulations, rules and other forms of a society by reviewing whether or not they are against upper norms. It is divided into two categories of 'Abstract Norms Control'(抽象的規範統制) and 'Concrete Norms Control'. The former is reviewing whether a norm is effective or not by the norm itself. But the latter means we could review a norm only when an application of a norm is a precondition of a trial of ordinary court. And you can easily grasp the concept of 'precondition of a trial'(裁判の前提性) when you envision a norm upon which the judicial proceeding relies for decision.

To help understand, I would like to talk about it setting a imaginary example. I know that also in Japan the sex offence has become more critical like any other nations. Let's say that Japanese government provided a law of compulsory castration for serial sex offenders to effectively deal with sex crimes. A sex offender might be arrested and by the law get into the danger of being executed castration. In a criminal trial he could file with Constitutional Court for reviewing the law if it would be against constitution because of its cruel and abnormal character. In this case we could say Constitutional Court review the law by 'Concrete Norms Control'. But let's assume a civil rights activist-of course he is not related to the crime-file with Constitutional Court about the law on a genuine humanitarian purpose to abolish it. This is what we say 'Abstract Norms Control'.

When could we say that 'precondition of a trial' is completed? If it would be  not fulfilled, Korean Constitutional Court can dismiss the case without a disposition of its merits(本案判斷). Korean Constitution Article 107 (1) and Korean Constitutional Court Act Article 41 mentions about 'precondition of a trial'. At first Korean Constitution Article 107 (1) provides that "when the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof." And Korean Constitutional Court Act Article 41 follows it and shapes up 'precondition of a trial' in more details explaining the procedure for ordinary courts to take.

Refer to Note 6)

In addition, we have a necessity to recall that Korean Constitution divides power of constitutional review between the Constitutional Court and the ordinary court system. The review of those statutes that underlie actual judicial proceedings against petitioners (in the case of Article 107 (1) of the Constitution) and the laws and regulations that directly infringe upon individual's constitutional rights (in the case of Article 111 (1)ⅴ) are placed under the jurisdiction of the Constitutional Court while the review of those executive orders, rules and regulations, administrative actions that form the premise of judicial proceedings against the petitioners (Article 107 (2)) are left with the ordinary court system.

Article 111

(1) The Constitutional Court shall have jurisdiction over the following matters:

……(ⅰⅱⅲⅳ) ⅴ. Constitutional complaint as prescribed by Act.

Article 107

(1) ……

(2) The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.

And to speak generally, in a nation to have adopted 'Concrete Norms Control' as America a law reviewed as unconstitutional becomes to be only rejected the application. But nevertheless in Korea adopting 'Concrete Norms Control' such a law is to be nullified but only toward future, which is similar to Austria. Article 47 (2) of the Constitutional Court Act provided for its future nullifying effect with the exception of criminal statutes that were to apply retroactively to the original case(in the ordinary courts), which is favorable to defendants instead.

Here is one more thing we have to pay attention. Korean Constitutional Court held on May 13, 1998 that a decision of unconstitutionality applies retroactively to the original case, and also that the Court can determine the retroactive effect of each decision on a case-by-case basis by weighing justice and fairness. The Court also ruled that, when there is no such determination by the Constitutional Court, the ordinary courts can make the determination rationally. Now, ordinary courts generally held a view that the decision should apply not only to the original case but also to all other similar cases that are pending at the time of the decision or will be filed afterwards. This might be done to promote the effectiveness of Concrete Norms Control. Refer to Korean Constitutional Court(ed.), 「The First Ten Years of the Korean Constitutional Court」, p. 55.

Ⅲ. Excluding Decisions by Ordinary Courts from Constitutional            Complaint(憲法訴願から裁判の排除)

Article 68 (1) of Korean Constitutional Court Act excludes decisions by ordinary courts from constitutional complaint. That is, Constitutional Court in principle can't control the ordinary courts including Supreme Court by Constitution.

Article 68 (Causes for Request)

(1) Any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint, except the judgments of the ordinary courts, with the Constitutional Court: Provided, That if any relief process is provided by other laws, no one may file a constitutional complaint without having exhausted all such processes.

From the time of initiating a draft of the Constitutional Court Act on, it has been a crucial point whether ordinary court's judgments should be challengeable on constitutional complaints. This is well represented in the seminar held by the Ministry of Justice Jan. 15, 1988 on the theme of 'the Legislation of the Constitutional Court Act'.

To summarize the opinion for excluding ordinary courts' decisions, it was as follows. The West German model of constitutional court, especially, the system of constitutional complaint, is extremely rare worldwide. To introduce it into Korea with completely different social and political backgrounds, we need to get some modification. The German Federal Constitutional Court is an integral part of the judiciary along with the Supreme Court, contrary to Korea in which the judicial power belongs to the ordinary courts headed up by the Supreme Court. So if we permit  judgments of ordinary courts to be subjected to the challenges on constitutional complaint, the result would be the creation of the fourth court higher than the Supreme Court.

In contrast, the opinion against excluding ordinary courts' decisions mainly access to the dispute relying on effectiveness of constitutional complaint and the original purpose of installing the system in constitution. The aim of the constitutional complaint system is to prevent and remedy the infringement of basic human rights by all unconstitutional exercises of governmental power and in doing so protect the constitutional guarantees of the basic human rights. Therefore, all the acts of all the three branches must be subject to review through the constitutional complaint system. Some people asserted that the scope and subject matter of constitutional complaint should be established from an angle of obtaining the effectiveness over the protection of basic human rights. They argued, all constitutional institutions are ultimately established for the purpose of realizing the values of the basic human rights. Therefore, even judgments of the ordinary courts must receive constitutional evaluation through the constitutional complaint system lest they go against the Constitution.

Refer to Korean Constitutional Court(ed.), op. cit., pp 20-21.

On the whole the former opinion belonged to ordinary courts' judges, the latter to constitutional law scholars.

Now we don't have to say that the dispute is over either theoretically or practically, which means that in some cases Korean Constitutional Court has become to acknowledge the exception of this principle. On December 24, 1997, the Constitutional Court held that ordinary courts' decision  infringing people's rights by not following the Court's unconstitutionality decisions (even if it is presented in the form of limited unconstitutionality) should be reviewed by the Court again, reasoning that it was the mandate of the Constitution that the Court recover its power and the primacy of the Constitution by such review. The Court then cancelled the Supreme Court's judgment that did not recognize the binding force of the Court's decision. It means eventually that the exception of being included to constitutional complaint for ordinary courts' decision is allowed.

To be parallel to this principle that ordinary courts' judgments are excluded from the subject matter of the constitutional complaint process, other exercises of governmental power could not be challenged on constitutional complaints without first exhausting all prior remedies such as ordinary judicial review. Therefore, we can say to some extent that the types of exercises of governmental power challengeable on constitutional complaints are very limited. It complicated the Court's ruling on the legal prerequisites to a constitutional complaint and led to many dismissals, which dissatisfied those citizens convinced of violations of their rights by unconstitutional powers. So until now almost all the constitutional law scholars has opposed fiercely to this excluding ordinary courts' decision principle with the mere exception held by Constitutional Court.

Refer to the latter part of Article 68 (1) of Korean Constitutional Court Act presented at Note 17). これを補充性の原則という.

Ⅳ. Modified Forms of Decisions(變形決定)

Article 45 of the Constitutional Court Act provided only two forms of decisions, constitutional or unconstitutional as the means of norms control. But the fact the dichotomized form of decision might be not sufficient to deal with all the various problems soon became realized. So from the early time on, the Constitution Court introduced 'modified forms of decisions' such as those of 'limited constitutionality'(限定合憲), 'limited unconstitutionality'(限定違憲), and 'nonconformity to the Constitution'(憲法不合致). These forms of decisions have been already generally recognized in the constitutional adjudication system such as Germany. They are needed, as Korean Constitutional Court held, to respect the legislative-formative power(立法形成權) properly, which means the legislature has the power to form the structure and content of the community that it represents, and to prevent confusion arising from the vacuum of law by a drastic decision of unconstitutionality and so on.

Article 45 (Decision of Unconstitutionality)

The Constitutional Court shall decide only whether or not the requested statute or any provision of the statute is unconstitutional: Provided, That if it is deemed that the whole provisions of the statute are unable to enforce due to a decision of unconstitutionality of the requested provision, a decision of unconstitutionality may be made on the whole statute.

1. the decision of limited constitutionality(限定合憲決定)

With the decision of limited constitutionality in the 89Hun-Ma38 case on July 21, 1989, the Constitutional Court began to issue modified forms of decisions. In that case, the Court ruled that "Article 32-2 (1) of the Inheritance Tax Act(相續稅法) is constitutional as long as it is interpreted to not apply to registration of property under a different name along with no evasive purpose."

In '89Hun-Ma38' 'Hun-Ma' means constitutional complaint case filed by individual complainant(s) in the form of constitutional complaint according to Article 68 (2) of the Korean Constitutional Act. And '89' means the year of 1989. '38' means this case is 38th case filed as 'Hun-Ma'. So we can say about '89Hun-Ma38' that the case was filed 38th  as a constitutional complaint case in 1989.

The most famous decision of limited constitutionality is probably the National Security Act(國家保安法) case. There, the Court held that Article 7 (1) of the National Security Act will be constitutional as long as the scope of its application is limited to only when the condemned conduct threatens the national integrity and security or the basic order of free democracy.

During a long period, National Security Act made to prevent subversion or treason stimulated by N. Korea, has been an acute and controversial sting point in S. Korean society. Article 7 (1) provided that "any person who praises, encourages, sympathizes with, or benefits through other means operation, an anti-state organization, its members, or any person under its direction shall be punished by imprisonment for up to seven years." Article 7 (5) provided that "any person who, for the purpose of performing the acts mentioned in (1), (2), (3) or, (4) of this section, produces, imports, duplicates, possesses, transports, distributes, sells or acquires a document, a drawing or any other expressive article shall be punished by a penalty prescribed in each subsection respectively." Using such vague terms, the provisions had restricted the freedom of expression in a sweeping manner. Korean Constitutional Court gave limited constitutionality to those clauses with adding critical conditions of application.

2. the decision of nonconformity to Constitution(憲法不合致決定)

The first decision of nonconformity to Constitution was ruled on September 8, 1989: "1. Articles 33 and 34 of the National Assembly Elections Act(國會議員選擧法) is not conforming to the Constitution. 2. The provisions shall remain effective until the end of May, 1991, or new first ever provisions are enacted by the legislators." The decision of nonconformity has been usually issued when invalidation of a statutory provision will not restore a constitutional order and a whole new legislation is called for. The decision often suspends application of the nonconforming provision indefinitely until it is revised by ordering the continued, temporary application of the invalid provision and consequently applies to the interim state of affairs, rather than the revised provision could affect retroactively otherwise.

Article 33 (1) of the Act (revised by Act No. 4003, March 17, 1988) requires independent candidates to make a deposit of twenty million won to the local Election Commission at the time of registering as a candidate and party nominees to deposit ten million won. Article 34 then forfeits the deposits minus some expenses in the event that the candidate resigns, nullifies his registration, or failures to gain one third of the effective votes. The main contents of the decision is as in the below.

The deposit requirement of ten million (independent candidates) or twenty million (party nominees) is excessive. It violate the basic principles of people's sovereignty and of free democracy in relation to right of equality (Article 11 of Constitution), right to vote (Article 24of Constitution) and right to hold public office (Article 25 of Constitution). However Constitution does special protection to parties, the deposit requirement for independent candidates amounting to twice the amount required of party nominees gives the independent candidates substantial competitive disadvantages and suppress their candidacy. Therefore, it violates the principles of equal election (Article 41 of Constitution) and of equality (Article 11 of Constitution). And forfeiting the deposits from the candidates who fail to gain one third of the effective votes is too stringent.

3. the decision of limited unconstitutionality(限定違憲決定)

The first decision of limited unconstitutionality was the Notice of Apology(謝罪廣告) case decided on April 1, 1991, limiting the scope of valid statutory interpretation. In this case, the Constitutional Court ruled that Article 764 of the Civil Act(民法) would be unconstitutional if it were interpreted to include notice of apology as 'suitable measure to restore (the plaintiff's) reputation'. The Court said the Article 764 unconstitutional insofar as it is interpreted to include the notice of apology as a suitable measure for restoring damaged reputation after elaborating on the nature of freedom of conscience(良心の自由), because an order of public apology compels an individual admitting no wrong on his part to confess and apologize for his conduct and so it distorts his conscience protected by Article 19 of the Constitution.

Article 764 of the Civil Act states that "the court, upon motion by the defamed, may order measures suitable to restore the reputation of the defamed, in addition to or in lieu of damages, against a person who defamed him or her". In theories and in precedents, an order of notice of apology had been generally accepted as a representative example of 'suitable measures to restore the plaintiff's reputation'. So the Constitutional Court overruled the conventional precedents and theories on the grounds of freedom of conscience and the right to personality.

4. Some find modified forms of decisions overused and feel uncomfortable but it is rare to find a constitutional law scholar who denies the practical need for them in Korea. Thus modified forms of decisions have successfully settled down in Korean constitutional adjudication. Nevertheless we might need legislative solution over the diverse forms of Constitutional Court decisions.

Ⅴ. Actual Standards of Review(實際の違憲審査の基準)

In the above I explained the basic principles in the light of the system prepared for Korean constitutional adjudication. From now on I want to say about some of the important principles which Constitutional Court have to abide by in dealing with the cases or on which actual constitutional adjudications has been frequently based. These principles could have been made through the depth-interpretation of Korean Constitution.

The explanations in this chapter are, in a large part, owed to Constitutional Court(ed), 「The First Ten Years of the Korean Constitutional Court」, pp 107-113.

1. The rule against excessive restriction(過剩禁止の原則)

Article 37 (2) of the Constitution provides as like this. "The freedoms and rights of citizens may be restricted by statutes only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated." People call it the description of the principle of proportionality(比例の原則) or prohibition of excessive restriction(過剩禁止の原則). Like any other nations the Korean Constitution also finds basic human rights not entitled to absolute protection. In reviewing the constitutionality of those governmental actions restricting basic human rights, the Court has usually employed the principle as a standard.

This principle is divided, Constitutional Court says, into 4 categories which are entirely to be fulfilled when deciding a government action constitutional. The contents of them are that ① it must be aimed at a valid purpose, ② it must be reasonable as a means chosen by the state to achieve and promote such purpose, ③ it must be the least restrictive among all equally effective options, ④ the importance of public interest and the degree of infringement are balanced on a relationship of proportionality. In other words we can say that Constitutional Court demands governments actions have the legitimacy of the end(目的の正當性), the appropriateness of the means(手段の適切性), the doctrine of the least restrictive means(被害の最小性) and the balance of conflicting interests(法益の均衡性).

2. The Principle against arbitrariness(恣意禁止の原則)

It is said that the principle of equality(平等の原則) prohibits the legislature from treating essentially equal things arbitrarily unequally or treating unequal things arbitrarily equally. That is, we can say there exists a unconstitutional discrimination when there is arbitrariness.

If two compared persons or groups are essentially different, their different treatment does not constitute discrimination and there is no need to ask whether the discrimination is constitutionally justified. Furthermore not every discrimination between equals or every equal treatment between unequals is unconstitutional. It must be arbitrary to be unconstitutional. Arbitrariness means the lack of reasonable cause, so discrimination is not arbitrary if it has an objective justification.

3. Due process of law(適法節次の原則)

Article 12 (1) of the Constitution, concerning punishment, preventive measures and involuntary labor, and Article 12 (3) for the principle of arrest by warrant mention due process of law. The Constitutional Court held by expanding the meaning presented on the Constitution on it's face that due process of law is not only related to bodily freedom(身體の自由) but to a principle governing the entire field of the Constitution. Its application is not confined to criminal proceedings but extends to all governmental functions. Furthermore it held due process of law is not only procedural but has substantive content, hence, we call it a substantive due process(實體的適法節次).

Article 12

(1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated except as provided by Act. No person shall be punished, placed under preventive restrictions or subject to involuntary labor except as provided by Act and through lawful procedures.

(3) Warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search: Provided, That in a case where a criminal suspect is an apprehended flagrante delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.

Constitutional Court 1997.7.16, 96Hun-Ba. Here Hun-Ba means constitutionality case filed by individual complainant(s) in the form of constitutional complaint according to Article 68 (2) of the Constitutional Court Act. And including a substantive due process of law, due process of law extends to 'due process of due law'.

And the Court has attempted to clarify the relationship between due process of law and the rule against excessive restriction in the following way. "Unlike the other, due process of law does not operate merely to limit the legislative power but as an independent constitutional principle governing all government functions, regardless of whether they infringe basic rights or not. Applied to restriction of bodily freedom in criminal proceedings, it emphasizes the importance of other rules, namely that even punishment by law should not infringe upon the essential content of bodily freedom; and it should be not excessive or proportional to be constitutional.

Constitutional Court  1992.12.24, 92Hun-Ka8, etc. 'Hun-Ka' here indicates constitutionality case referred by ordinary courts according to Article 41 of the Constitutional Court Act. supra Note 11).

4. The principle of clarity of law(法律の明確性の原則)

To speak generally, rule of law requires every law to be clearly expressed as a standard to be used by the executive and the judiciary. When a statute delegates the executive to deprive people of their liberty or right, it must clearly restrict the scope of the authority granted. When the statute is applied by courts, it must be sufficiently clear as a standard of law.

In particular, the principle of clarity of law requires that an authorization to the executive be sufficiently defined and restricted in its contents, ends, and scope by the enabling statute so that people can foresee the actions of the concerned administrative agency.

But of course, this principle does not prohibit the use of general provisions or indefinite concepts in all cases. In order to allow the executive to cope with various tasks and the special circumstances of each particular case as well as the changing world, the legislature inevitably uses abstract and open-ended concepts. However it must be an exceptional case. Therefore, the requirement of clarity has the chance of varying in accordance with the subject matter regulated and the restrictive effects on basic human rights of a person thus regulated. So we could say that as the restrictive effects on the affected people become more severe, the demand of clarity on the statute also should be increased.

5. Prohibition of blanket delegation(白紙委任の禁止)

Article 75 of the Constitution stipulates like this. "The President may issue presidential decrees(大統領令) concerning matters delegated to him in a concrete, limited scope by statutes, and also the matters necessary to enforce statutes." It not only provides a basis for delegation of rule-making, but requires such delegation to limit its scope concretely. This aspect of Article 75 implements the principle of clarity of law in relation to administrative rule-making.

On the basis of administrative law-making and its limit, let's see some of the Constitutional Court decisions. 1) Article 75 aims at carrying out the rule of law and the principle of legislative law-making by requiring the parent statutes(母法) to specify the scope and the content of the subject matter to be regulated by presidential decrees, thereby precluding arbitrary interpretation or enforcement of law. In light of this constitutional-legislative intent, 'concrete in scope' means that the enabling statute(根據法律) must specify the subject matter delegated to presidential decrees as well as other inferior laws(下位法令) so clearly and concretely as to allow people to infer from the statute itself the basic outlines of the presidential decrees. 2) In addition, the requirement for the specificity and the clarity of delegation varies with the type and the nature of the subject matter. It becomes more exacting in the areas of taxation(課稅) and criminal punishment, which directly abridges or is likely to infringe upon basic human rights, and becomes more generous for the subject matter of varying types or of rapidly changing nature.

Constitutional Court 1991.7.8, 91Hun-Ka4.

Constitutional Court 1991.2.11, 90Hun-Ka27.

Ⅵ. Conclusion(結論)

Nowadays all countries in the world might adopt a constitutional adjudication system to realize constitutional justice and to defense constitutional order. They do it through ordinary courts as in the United States, Japan etc. or through an independent constitutional court as in Germany, Austria and S. Korea and so on. The Korean Constitutional Court has earned international recognition for having firmly established the constitutional adjudication system successfully despite of it's a little bit short history, by which the power of the state has to be exercised rationally in accordance to the Constitution, so the Korean people's freedom and rights has become to be better protected. To some extent such a result, we could call, is even a gigantic social and cultural phenomenon.

But as we have in our life dark aspects along with bright ones, Korean Constitutional Court also has got some criticism or reproaches. For example, people usually complains that the time for processing a case is too long, the legal prerequisites to obtaining the review are too difficult to meet, constitutional interpretation is often distorted by political considerations, the high legal fees due to compulsory attorney representation rule(辯護士强制主義) and so on. But the more critical complains, many scholars say, exist in barring constitutional complaint challenges against ordinary courts' decision. And the appointment process of Constitutional Court Justices under the current provisions of the Constitution and the Constitutional Court Act has often been blamed for failing to meet the requirements of democratic legitimacy(民主的正當性), given the overwhelming importance of the power and duty of them.

Article 111 of the Constitution

(1) ……

(2) The Constitutional Court shall be composed of nine Justices qualified to be court judges, and they shall be appointed by the President.

(3) Among the Justices referred to in paragraph (2), three shall be appointed from persons selected by the National Assembly, and three appointed from persons nominated by the Chief Justice of the Supreme Court.

(4) The president of the Constitutional Court shall be appointed by the President from among the Justices with the consent of the National Assembly.

Article 6 of the Constitutional Court Act (Appointment of Justices)

(1) The Justices shall be appointed by the President.

(2) Among the Justices referred to in paragraph (1), three shall be elected by the National Assembly, and three shall be designated by the Chief Justice of the Supreme Court.

(3) ……

Now it is necessary to seriously examine the defects pointed out by many people, either systematical or managerial, thus improve the function of the Constitutional Court. And above all the Court itself always must try to obtain the confidence of the people by further refining its reasoning based on many accumulated precedents so far. By doing so, the way to true democracy and constitutionalism of Korean society will be shortened remarkably, so we will have a stable and matured society certainly as I predicted.