Korean Constitutional Court and Democracy【Special Features：The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Korean Constitutional Court and Democracy

KOKUBUN Noriko*

Abstract
In Korea, the Constitution was amended in 1987 (generally referred to as the Constitution of the
6th Republic), heralding Korea’s era of democratization. After the democratization, theConstitutional Court of Korea is working very actively and attracting attention globally.
In this article, the following topics are discussed: 1) The history of the constitutional review
system after the founding of the Republic of Korea, 2) An overview of the present Constitutional
Court, and 3) The problem of ‘political judicialization’ that has appeared in the court cases.
The Constitutional Court of Korea basically models the German Constitutional Court. However,unlike in Germany, there are some very Korean characteristics. From the viewpoint of its
organization, the Korean Constitutional Court has nine judges who passed the exam for the legal
profession. Three of the nine judges must be nominated by Parliament, three by Chief Justice ofSupreme Court, and three by President. While this is believed to be in consideration of theseparation of powers, in reality, the influence of the President is relatively significant.
From the viewpoint of its function, unlike the German Constitutional Court, the Constitutional
Court of Korea has no authority for abstract normative control, and concrete normative control isdone only for laws. The reason for no abstract normative control is that the Constitutional Court
does not have to take a position over the Parliament. On the other hand, since the Constitutional
Court's decision has the power to invalidate the law, it still has a significant influence on legislation.
For this reason, the Constitutional Court has made judgments to allow room for legislative
discretion by using various judgment methods called ‘transformation decisions’ in consideration to
the legislature. However, its positive activities have created the phenomenon of ‘politicization ofjustice’ or ‘judicialization of politics’.
It is examined in this article, how the Constitutional Court can be positioned for democracy andpolitical processes through analysis of the role of the Constitutional Court from the relationshipwith the political sector.

* Professor, Faculty of Law, Hosei University, Japan35

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Contents
I.

Introduction

II. History
III. Overview of the current Constitutional Court
1.

Function(1) Nonconformity to Constitution (nonconformity decision)(2) Limited Constitutionality and Limited Unconstitutionality

2.

The method for selecting Constitutional Court judges

IV. Constitutional Court decisions and political issues
1.

A case of dispute over authority

2.

The case of party dissolution

3.

Impeachment(1) The case of President Roh Moo-hyun(2) The impeachment of President Park Geun-hye(3) Public confidence as a basis for determining impeachment

V. Conclusion

I.

Introduction

Since its establishment in 1948, the Republic of Korea has implemented a system of
constitutional review. However, under dictatorship rule, this system did not function well. It
was not until after the nation’s democratization and the introduction of a new Constitutional
Court system under the present Sixth Republic Constitution that constitutional review cameto be actively used. Today, the Korean Constitutional Court is attracting attention as arepresentative example of the constitutional review system in Asia.
Activities by an active Constitutional Court are generally highly valued in Korea1,
however, situations are also occurring that are forcing us to question how we should
consider the position of the Constitutional Court within the nation, and consequently ask‘what is constitutionalism?’ In particular, in recent years, the ‘judicialization of politics’ has
become a theme frequently taken up in Korea. After presenting: 1) The history of the
1 According to an annual survey by JoongAng Ilbo, the Constitutional Court has been known for its position of the ‘Most

trusted State Organ’.

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constitutional review system after the founding of the Republic of Korea, 2) An overview
of the present Constitutional Court, and 3) The problem of ‘political judicialization’ that has
appeared in court cases, this report examines what kind of position the Constitutional Court
might have in a democracy.
II. History
First, let us revisit the history of Korea’s constitutional court system.
A system of constitutional review was introduced at the time of the founding of the
Republic of Korea in 1948. At the time of establishing the Constitution, there was a debate
about the kind of constitutional review system that should be introduced. There were twoschools of thought: adopting a constitutional review system through ordinary courts (fromnow on referred to as the American type) or adopting a system that authorized aConstitutional Committee that was separate from the regular court system (hereinafterreferred to as the Continental type). In the end, the system that was established was chairedby the vice president and gave the Constitution Committee, consisting of five Supreme
Court judges and five congressional members, the right to review the constitutionality of
the law.
At this time, in the explanatory memorandum to the 1948 South Korean Constitutional
Assembly, it was explained that the courts were empowered to request a review of theconstitutionality of the law, and the authority to conduct such a review was given to theConstitution Committee, a special review body that was separate to the court, to take into
consideration the balance between judicial and legislative powers.
A Constitutional Court system that is similar to the present system, was subsequently
introduced in the Second Republic (1960 Constitution) that was established after the April
Revolution (4.19 Democratic Revolution) overthrew the Syngman Rhee regime. However,the Second Republic collapsed before this system was realized, and in the Third Republic(1962 Constitution) during which Park Chung-hee held power, an American constitutional
review system was implemented. During the Fourth Republic (1972 Constitution) and theFifth Republic (1980 Constitution) a Continental constitution committee system wasadopted. A system in which constitutional review was conducted by the Constitutional
Court was realized for the first time under the current 1987 Constitution (the Sixth

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Republic). While the Constitution Committee was stipulated under the ‘Court’ chapter inthe previous Constitution, the present Constitution has a separate chapter 6 on
‘Constitutional Court.’ Based on the 1987 Constitution, the Constitutional Court Act waspromulgated on 5 May 1988.
This description may suggest that Korea's constitutional review system has undergone a
considerable transition. Still, except for the Third Republic, the nation has continued toadopt a Continental constitutional review system. Further, Korea’s distinctive system forconsidering the constitutionality of laws separately from the constitutionality of orders,rules, and dispositions has been consistently followed since the establishment of the First
Republic Constitution, including during the Third Republic.2
When the current Constitution of 1987 was established, there was a debate as towhether to give the power of constitutional review to the Supreme Court or to create a
Constitutional Court. The reason why the German Constitutional Court system was chosen
has not been clarified, but according to the compilation of the Constitutional Court, it wasasserted that during the deliberations around the introduction of the Constitutional Appeal
System, the German-type would guarantee the protection of human rights.3
Before 1987, the constitutional review system under dictatorships did not function. For
this reason, even when the Constitutional Court came into being after the nation’s
democratization, there was little hope for it to function well. However, the Constitutional
Court had gained the trust of the public over time as an organization that contributed todemocratization by determining that laws established under dictatorship rule wereunconstitutional.
2 According to the 1987 Constitution, article 107 provides that:(1) 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.
(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.
Furthermore, even in the third republic, which adopted the US-style constitutional review system, the constitution
provides that the constitutional review of law is the separated from the review of orders, rules, and dispositions, as describedin article 102 in the 1962 Constitution:
Article 102 When the constitutionality of a law is at issue in a trial, the Supreme Court shall have the power to make a
final review of the constitutionality thereof.
(3) 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.
In Korea, the constitution committees of the 1st, 4th, and 5th republics are also limited in terms of their authority to
conduct a concrete review of norms, and an abstract review of norms was not permitted.
3 The First Ten Years of the Korean Constitutional Court 1988-1998 (Constitutional Court of Korea., Seoul 2001), p.17.

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III. Overview of the current Constitutional Court
1.

Function

What are the current functions of the Constitutional Court?
Article 111 (1) of the Constitution defines five powers: 1. Adjudication on theconstitutionality of statutes, 2. Adjudication on impeachment, 3. Adjudication on the
dissolution of a political party, 4. Adjudication on competence disputes, 5. Constitutional
complaint. The first of these powers is the equivalent of the German ‘concrete review ofnorms’. There is no power to conduct an ‘abstract review of norms’, and the concrete
review of norms can only be carried out against laws created by the National Assembly.
The absence of the power to conduct an abstract review of norms is thought to be inconsideration of the legislative powers of the National Assembly under the separation of
powers. On the other hand, the fact that the Constitutional Court can only conduct a
concrete review of norms during a constitutional review of laws, and regular courts makedecisions on orders and rules, constitutional review of laws is considered to be a different
domain to that of ordinary judicial affairs. While distinguishing itself from ordinary judicial
matters, when conducting a constitutional review of laws, the power of the Constitutional
Court, which requires the existence of legal disputes to be subject to trial, can also bereferred to as ‘political judiciary.’
The validity of the Constitutional Court’s decision is defined by the Constitutional
Court Act as being broadly binding to all state agencies. For this reason, it can be said that
the Constitutional Court recognizes that the Constitution has persuasive authority over allstate institutions that extends beyond the separation of power. However, the members of theConstitutional Court are not directly chosen by the public. In this respect, the Constitutional
Court has customarily created a judgment style that emphasizes the discretionary powers of
the legislature in examining the laws created by the National Assembly, as representativesof the people. This judgment style is called ‘modified decisions’. There are currently threeforms of this style, which are described as follows4:4 Ibid, pp.87-93.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)(1) Nonconformity to Constitution (nonconformity decision)
In several cases, the Constitutional Court stated that there is a general need for‘nonconformity decisions’ because a simple choice between unconstitutionality andconstitutionality prevents the Court from taking a flexible and resilient approach to areasonable interpretation of the laws that regulate the complex social phenomena; it may
cause the vacuum in or confusion about the law, destabilizing the legal system; and it
can restrict the legislature’s policy-making privilege. The Court made it clear that thisnonconformity decision is simply a mutated form of the decision of unconstitutionality
provided in Article 47 (1)5 of the Constitutional Court Act; and, therefore, naturally has
the binding force on all other state institutions.
This is not a simple declaration of nonconformity to the Constitution, but one thatgives provisional legal effects to the unconstitutional statute until the legislature cures its
defect in accordance with the Court’s decision.
(2) Limited Constitutionality and Limited Unconstitutionality
The Constitutional Court issues a decision of limited constitutionality, using theexpression ‘[the law] is not unconstitutional as interpreted,’ and in the decision oflimited unconstitutionality, using the form ‘[the law] is not constitutional as interpreted’.
The Court explained that, although the statute in question had unconstitutional aspects,
if it could also be interpreted in ways consistent with the Constitution, the Court coulddeliver “the decision of constitutionality/un-constitutionality as interpreted or applied”
as could be naturally be derived from the doctrine of preference for constitutionality instatutory interpretation6. Specifically, in expressing his concurring opinion of this case,the first President Cho Kyu-kwang elaborated that if the text and the legislative intent of
the statute have room for both the decisions of constitutionality and unconstitutionality,
the Court must choose the preferred, constitutional version of the statutory interpretation.
In doing so, the Court can use both ‘unconstitutional as interpreted’ and ‘constitutional
as interpreted’ as proper forms. As the two forms are different only in expression but thesame in essence and for all practical purposes, the choice between them is merely a
5 Constitutional Court Act, Art.47 (1): Any decision that statutes are unconstitutional shall bind the ordinary courts, otherstate agencies and local governments.
6 CC 1989.7.21, 89 Hun-Ma38.

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matter of choosing the appropriate means.
In any of these methods of decision making, the Constitutional Court may take thelegislative power of the National Assembly into consideration, urge the legislature toreconsider, rather than invalidate laws enacted by the National Assembly, or interpret thecontent of the laws in a way that conforms to the Constitution. However, since thesemethods of decision making are not stipulated in the Constitutional Court Act, but rather are
methods developed by the Constitutional Court itself, there is criticism that using suchmethods is, in itself, illegal.
2.

The method for selecting Constitutional Court judges

Nine judges conduct a Constitutional Court trial. Under the Constitution, the President
appoints nine judges. Among them, the National Assembly and the chief of the Supreme
Court each nominate three members, taking into account the separation of power. However,among the three members nominated by the National Assembly, one is recommended by
the ruling party, one by the opposition party, and one is by recommendation of the rulingand opposition party by consensual decision. Further, the Chief of the Supreme Court, whonominates three judges, is to be appointed by the President upon the consent of the National
Assembly.7 Given these constraints, it is said that presidential influence on the overall
nomination process is substantial. In addition, although the term of a Constitutional Court
judge is six-years, with the possibility of re-appointment, since most judges resign at theend of their six-year term, if the President of the same party were to continue for more than
two terms (the term of the President is five years), the Constitutional Court might strongly
reflect the influence of that party.
Currently, all candidate judges are to appear before a National Assembly hearing. Thisis important in terms of giving democratic legitimacy to their appointments. However, thereis the problem that these hearings may be used as a political dispute tool, with actual cases
where candidates have been subjected to harsh interrogation over their political positionand consequently declined their nomination.
More recently, a political issue arose when President Moon Jae-in appointed two judges
without waiting for a hearing report, which has led to the alarming speculation that the
7 The 1987 Constitution, Article 104, Article 1

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Constitutional Court will become nothing more than a subordinate agency of the executive
office.8
IV. Constitutional Court decisions and political issues
Above, I have touched on the Constitutional Court’s consideration of the legislative
power of the National Assembly and political issues relating to the appointment of a judge.
However, the authority of the Constitutional Court, as envisaged by the Korean
Constitution, possesses a very close relationship with politics. For this reason, in recent
years, problems such as the ‘judicialization of politics’ have become a topic of discussion.
Below, we will look at some representative cases.
1.

A case of dispute over authority

This case involves a dispute over authority raised by opposition lawmakers regarding
the revision procedures for the Draft Law Relating to Media at the second plenary sessionof the 283rd National Assembly (extraordinary session) on 22 July 2009 under the Lee
Myung-bak administration (Act on the Freedom of Newspapers, etc. and Guarantee of their
Functions, the said partial revised Broadcasting Act and the proposed partial revisions to the
Act on Internet Multimedia Broadcasting Business).9 The outline of the case is as follows.
The government and the ruling party held that the integration of broadcasting andcommunications must improve broad and unbalanced regulations that do not conform to therapidly changing media environment due to technological development and submitted a billthat would remove the clause that prohibited the concurrent operation of newspaper andbroadcast businesses, and newspapers and large companies from holding terrestrial
broadcast shares. In response, opposition parties, broadcasters, and labor unions strongly
opposed this revision, arguing that it was intended to curb criticism of the administration by
the broadcasters and aimed at the control of the broadcasters by the three major newspaper
companies and large conglomerates close to the Lee Myung-bak administration. Their
8 Chosun Online 2019/4/20

http://www.chosunonline.com/site/data/html_dir/2019/04/20/2019042080007.html[accession date: May 3, 2019]9 21-2(B) KCCR 14, 2009 Hun-Ra8/9/10 (consolidated), October 29, 2009. English summary of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2009/pdf/e2009r8_1.pdf [accession date: March 31, 2020]

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opposition resulted in fierce and ongoing trading of insults that escalated into a brawl.
Finally, the Speaker of the National Assembly attempted to use his authority to table theBill in the plenary session. Still, the opposition members blocked the entrance, preventing
the Speaker from entering the plenary hall. The Speaker consequently delegated theproceedings to the Vice-Speaker. The Vice-Speaker used the authority of the Speaker anddeclared that Bill would be tabled at once, that the examination report and the Bill
explanation, would replace the minutes and meeting materials, and that no questioning or
debates would be held. The ballot was to be held electronically, and the result displayed onan electronic board. However, in the decision relating to the amendment of the broadcast
law proposed by the ruling Grand National Party, after the Vice-Speaker declared the end of
the ballot the following figures were recorded: National Assembly Members: 294 people,
Members Present: 145 people, Members in Favor: 142 people, Members in Opposition: 0
people, Members Abstained: 3 people. In response to this outcome, the Vice Speakerreferred the said Broadcasting Act to a revote, saying that “the bill proposed by Kang,
Seung-kyu and other 168 assemblymen shall be voted again, [and] it will be revoted
because of the failure of a vote due to the lack of presence quorum.”10 A second ballot was
held, and on this occasion, the voting board showed 150 approval votes, zero opposite votes,
and three abstention votes, out of an enrollment of 294 members and the presence of 153
members of the National Assembly.11 In this way, the Bill was passed, as were several
others.
On the other hand, concerning the series of procedures, opposition lawmakers filed alawsuit in the Constitutional Court seeking confirmation of the invalidation of the law on
the grounds that their right to ballot had been violated by the government for reasons
including: the Speaker cannot authorize the tabling of an item; the proceedings carried out
by the Vice-Speaker, which did not allow for explanations and debate, violated appropriate
procedure; and the verdict of the draft amendments violated the principle of not deliberating
the same measure twice.
In this case, the Constitutional Court did not recognize the invalidation of thepromulgation of the draft law. Five out of nine judges recognized the illegality of theviolation of the principle of not deliberating the same measure twice. Still, they did not
10 Ibid, p. 354.
11 Ibid,43

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reach the number necessary for determining unconstitutionality (six out of nine). In addition,although they acknowledged that the rights of the claimants to deliberate and vote had been
violated, it was deemed that there was no problem with the act of declaring thepromulgation itself, and the establishment of the law promulgated on this occasion wasconsidered valid.
There has been an argument among the media and citizens, both supporting andopposing the decision. In particular, many commentators and intellectuals took the ‘dual
stance’ of the Constitutional Court – where it found that the act was illegal, but not severe
enough to invalidate the promulgation – as a significant problem and coined the term
‘judicialization of politics’.
One of the by-products of the National Assembly’s rivalry, which is represented by thiscase, is the National Assembly Advancement Act. The National Assembly Advancement
Act is the general name for the National Assembly Act revisions that took place in 2012.
Before this, the Speaker of the National Assembly designated the period for committee
examination of items, and if this examination did not end within the set period, the Speaker
had the authority to refer it to another committee immediately after the designated period or
to submit it to the plenary session. However, due to the confrontation between thegovernment and the opposition over matters including the proposed Budget, the US-ROKFTA and the case discussed above, the government used its authority to table the Bills,
which in turn triggered a violent response. Consequently, in the May 2012 amendment of
the National Assembly Act, the powers of the Speaker to exercise his or her ‘official
authority’ to fast track the tabling of legislation were limited to: 1) the event of a natural
disaster; 2) the event of war, incident or similar situation that triggers a national emergency;or 3) any other situation where the Speaker and the representatives of the factions agree(noting that even in the case of 1) or 2), consultation between the Speaker and therepresentatives of the factions is necessary). The amendment provided that in order to be
designated as an ‘expedited processing case’, a motion by a majority and approval by
three-fifths of National Assembly members would be required.
Similarly, introduced under the ‘National Assembly Advancement Act’ was an‘unlimited debate’ (filibuster) system. This meant that the Speaker was required to permit
an unlimited debate if a request form signed by one-third or more of the registeredmembers was submitted for a matter assigned to the plenary session (however, the number

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Korean Constitutional Court and Democracyof statements allowed was only one per member). In order to conclude an unlimited debate
by decision required the submission of a closing motion by more than one-third of theregistered members and a vote by secret ballot 24 hours after submission of the closing
motion. The secret ballot required the approval by more than three-fifths of registeredmembers.
This revision was a pledge by the ruling Saenuri Party during its election campaign, andit was made with the agreement of the ruling and opposition parties. The result, however,
was the creation of a situation in which deliberation within the National Assembly stalled,
and it became challenging to re-amend the National Assembly Act itself. Consequently, theview arose that this issue could not be resolved by anything other than the Constitutional
Court.12 Under such circumstances, on 30 January 2015, 19 members of the Saenuri Party
claimed that “the provisions of the National Assembly Act violated the deliberation andvoting rights of the National Assembly members” and filed for a Constitutional Court trial
against the Speaker of the National Assembly and the chairman of the Planning and
Finance Committee over a dispute of authority. However, for reasons including theexceeding of the prosecution period, the case was dismissed.13
2.

The case of party dissolution

The Korean Constitution contains a provision for the dissolution of a political party,
stating that “if the purposes or activities of a political party are contrary to the democratic
basic order, the Government may bring an action for its dissolution in the Constitutional
Court, and the political party may be dissolved by decision of the Constitutional Court”.14
There is controversy within Korea regarding the understanding of this clause. While there isa view that it is the influence of the German Streitbare Demokratie (Fortified Democracy),
there is also a view that the Constitutional Court conducts a review to prevent the
government from arbitrarily disbanding political parties, as had happened under past

12 See for example: Chosun Ilbo Online Edition chosun.com 31 October 2015 Editorial, the Constitutional Court, theNational Assembly Advancement Act, and the Constitutional Appeal Decision – what can we gauge from this?
http://news.chosun.com/site/data/html_dir/2015/10/29/2015102904826.html?Dep0=twitter&d=2015102904826 [accession
date: March 30, 2020]
13 2015 Hun-Ra1, May 26, 2016. English summary of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2016/pdf/e2015r1_1.pdf. [accession date: March 30, 2020]
14 The 1987 Constitution, Article 8, Paragraph 4.

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dictatorships. Under the 1987 Constitution, there had been no case of party dissolution until
2014, when the Unified Progressive Party was dissolved by the Constitutional Court, adecision that attracted significant attention15. The direct cause of the case was that during an
emergency, the National Assembly members of the Unified Progressive Party had
conspired with North Korea to destroy state-owned facilities in South Korea. Members of
the party were arrested and prosecuted for the crimes of plotting insurgency and civil unrest,and violations of the National Security Act. In this case, it became a question of whether theactivities of their group could be viewed as the activities of the Unified Progressive Party
itself. The Constitutional Court found that three members of the National Assembly were
present at a secret meeting and that many other attendees were leading members of theParty.
Further, one member in a key position within the Unified Progressive Party actively
advocated their assertations of innocence. However, based on the fact that the participantsat the meeting were nominated as candidates for public office, the Constitutional Court
concluded that the sabotage plot was indeed the activity of the Unified Progress Party.
Furthermore, the concept of ‘progressive democracy,’ which was contained within the
mission statement of the Unified Progress Party, was regarded as contrary to thefundamental democratic order, as it was considered an idea of a socialist state based on aclass-like world view that denied national sovereignty. The Unified Progress Party was
subsequently dissolved by the decision of the Constitutional Court, a decision that also
disqualified five National Assembly members from the legislature (including regional
representatives).
Following this Constitutional Court decision, these National Assembly members were
found guilty by the Supreme Court under the criminal code for violation of the National
Security Act. However, the charge associated with the crime of plotting insurgency was notrecognized.16 Consequently, many voiced doubt about the decision of the Constitutional
Court, and despite no clear stipulation regarding the divestment of office for the National
Assembly members, the Party was dissolved, and the National Assembly qualifications
were revoked from five members, including those who were district elected members, acts
15 2013 Hun-Da1, Dec.19, 2014. English translation of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2014//pdf/e2013d1_2.pdf. [accession date: March 30, 2020]
16 The Supreme Court Verdict, Jan. 2, 2015, 2014. do 10978

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which drew criticism.
3.

Impeachment“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 otherpublic officials designated by Act” may be subject to impeachment.17 There have been twocases in which the Constitutional Court examined impeachment under the 1987
Constitution. The cases of President Roh Moo-hyun in 2004 and President Park Geun-hye
in 2017 are the two examples of impeachment targeting the nation’s president.
(1) The case of President Roh Moo-hyun18
The main reasons for the impeachment of President Roh Moo-hyun were the facts thatthe president had acted in favor of his political party before the National Assembly election,and that he made remarks to disrespect the constitutional institutions, which amounted to abreach of the order of the national laws. Articl 9 of the Act on the Election of Public
Officials and the Prevention of Election Malpractices (hereinafter ‘The Public Officials
Election Act’) at that time provided that
A public official or a person who is required to maintain political neutrality (including an agency ororganization) shall not exercise any unreasonable influence over the election or perform any act
likely to have an effect on the election.

At a press conference before the National Assembly elections, President Roh Moo-hyunmade multiple statements indicating that he supported the ruling party at the time, ‘The
Yeollin Uri Party’, including: “I expect that the people overwhelmingly support the Uri
Party”, and “I would like to do anything that is legal if it may lead to the votes for the Uri
Party”19, which were deemed to have violated the Public Officials Election Act. Also, thePresident expressed regret over the decisions of the National Election Commission (which
17 The 1987 Constitution, Article 65.
18 16-1 KCCR 609, 2004 Hun-Na1, May 14, 2004. English translation of the decision:
http://search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?seq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A
1%80&eventNum=12077&eventNo=2004%ED%97%8C%EB%82%981&pubFlag=0&cId=010400 [accession
date:2020/3/30]
19 Ibid. p161.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)is a constitutionally stipulated body) that required the compliance of electoral neutrality
obligations to such presidential speeches, and he further denigrated the current election law
as the ‘vestige of the era of the government-power-interfered elections.’20 These comments
were considered to have violated Article 40 of the Constitution, which provides thatlegislative power shall be vested in the National Assembly, and Articles 66 and 69, which
stipulate the President's obligation to comply with the Constitution.
In this decision, the criteria for the president’s impeachment trial were explicitly stated.
That is, “a decision to remove the President from office shall be justified in such limited
circumstances as where the maintenance of the presidential office can no longer bepermitted from the standpoint of the protection of the Constitution, or where the President
has lost the qualifications to administrate state affairs by betraying the trust of the people.”21
As mentioned above, this decision for impeachment, which was the first impeachment case,cites the essence of the impeachment and gives a reasonably detailed explanation for
determining the adjudication. Concerning impeachment, the purpose and the function of the
impeachment process are to reinforce “the normative power of the Constitution by holding
certain public officials legally responsible for their violation of the Constitution in
exercising their official duties.”22 In particular, the fact that a president, who is directly
elected by the people, can also be subject to the preservation of the Constitution
demonstrated that even the “political chaos that may be caused by a decision to remove thePresident from office should be deemed as an inevitable cost of democracy in order for thenational community to protect the basic order of free democracy.”23
In this decision, the Constitutional Court acknowledged that the law had been violated.
However, it was considered that the question of whether there was a ‘grave violation of law’or whether the ‘dismissal was justifiable’ should be determined through balancing thedegree of the negative impact on or the harm to the constitutional order caused by theviolation of law and the effect to be caused by the removal of the respondent from office. In
this case, it was not considered a ‘grave’ violation of law sufficient to justify the removal ofa public official from office, and the President was therefore not dismissed.
20 Ibid. p173.
21 Ibid. p.182.
22 Ibid. p.159.
23 Ibid.

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24(2) The impeachment of President Park Geun-hye25
In this case, which became worldwide news, the President was accused of having
leaked official secrets to friends and allowed them to intervene in government affairs andthe hiring of staff. It was further alleged that they also benefitted financially from thebusiness world.
Here, although many unconstitutional and illegal acts were explicitly indicated, themain reason for dismissal is cited as having betrayed the people’s trust through these acts.
Three contributing reasons are cited for this betrayal of confidence: that the violation of thelaw was grave, that Park violated the President’s obligation to serve the public interest, andthat Park’s will to safeguard the Constitution was not recognized.
Following a close examination, in this case, all eight judges (of the nine, the chief judge
resigned during the trial) unanimously decided to remove the President, concluding that;…the respondent’s acts of violating the Constitution and law are a betrayal of the people’s
confidence, and should be deemed grave violations of the law unpardonable from theperspective of protecting the Constitution. Since the negative impact and influence on theconstitutional order brought about by the respondent’s violations of the law are serious, we
believe that the benefits of protecting the Constitution by removing the respondent from officeoverwhelmingly outweigh the national loss that would be incurred by the removal of the
President.26(3) Public confidence as a basis for determining impeachment
In the case of President Roh Moo-hyun, the Constitutional Court presents ‘the balance
between “the seriousness of the violation of the law” and “the effect of a dismissal
decision”’ as the standard for dismissing the President. The latter is considered to be tied to“direct democratic legitimacy” and “the public interest in continuity of performance of
24 Ibid. p.180.
25
2016 Hun-Na1. English translation of the decision:
http://search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?seq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A
1%80&eventNum=48728&eventNo=2016%ED%97%8C%EB%82%981&pubFlag=0&cId=010400
26 Ibid. p.63.

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presidential duties”.27 This standard has also been followed in the case of President Park
Geun-hye. However, it should be noted here that the relationship between the president andthe people in the two cases was very different. In the case of President Roh Moo-hyun,
many of the people were sympathetic to him. The effect of a dismissal decision for apresident who possesses both a serious violation of thelaw and direct democratic legitimacy
is, for the people who support the president, a symmetrical argument that can be considered
reliable. However, the people’s stance towards the case of President Park Geun-hye wasdifferent. It was a situation in which the majority of people wished the president to step
down before impeachment proceedings had commenced. It is said that under the current
Constitution, in which the incumbent president is not allowed to resign directly,
impeachment is the only possible means for removing a president. Under thesecircumstances, it can be said that the above two concepts did not become counterbalancing
forces for President Park Geun-hye, as had been the case for President Roh Moo-hyun.
In this aspect, looking once again at the Constitutional Court in the Roh Moo-hyun case,one may question whether the seriousness of the violation of the law and the effect of adismissal decision always, in fact, stand in opposing positions in terms of balance. The
Constitutional Court stated that;… A grave violation of the law from the viewpoint of protection of the Constitution [is]… an act
that threatens the basic order of free democracy that is an affirmative act against the fundamental
principles constituting the principles of the rule of law and a democratic state, [and that] ‘act of
betrayal of the public’s trust’ is inclusive of other patterns of the act than a ‘violation of law
significant from the standpoint of protection of the Constitution.’28

Of the above two points, the issue of ‘the public’s trust,’ that is, ‘direct democratic
legitimacy,’ relates to the effect of a dismissal decision. However, considering that an ‘actof betrayal of the public’s trust’ is deemed to be an extension of ‘an act that threatens thebasic order of free democracy’, what can be the final standard for dismissal is whether or
not there was a ‘betrayal of the public’s trust’. Of course, this must be premised on theexistence of a violation of the Constitution or other acts as defined in Article 65 (1) of theConstitution. In this sense, it may be fair to say that impeachment is not a political
27 Supra. Footnote 18, p.181.
28 Ibid. p.181-182.

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responsibility but a legal responsibility. However, as the final deciding criterion, ‘betrayalof the public’s trust’ is a highly political issue, determining whether or not to dismiss isintertwined with an element of political judgment.
V. Conclusion
The Constitutional Court is considered to be, in principle, within the domain of the
judiciary as one wing of the separation of powers in Korea. However, as political issues are
regularly brought to the Constitutional Court, a phenomenon called ‘judicialization ofpolitics’ has occurred. This kind of problem is not only emerging in Korea but also in many
countries with constitutional courts. Particularly in the case of the Korean Constitutional
Court, which possesses the powers of party dissolution and impeachment, confronting
political issues is what was originally intended under the Constitution, and therefore‘judicialization of politics’ can perhaps be considered a natural consequence.
The role of the Constitutional Court is primarily to defend constitutionalism. However,democracy is included in the basic principles of the Constitution. What can be seen fromthe party dissolution and impeachment cases is a system in which the Constitutional Court– the Guardian of the Constitution – must set foot into the substance of democracy.
Why has such strong Constitutional Court authority been maintained? This is due to theexistence of public trust in the Constitutional Court. In the democratized Korea, theConstitutional Court has maintained its status as the ‘most trusted state organ in Korea’.
The judicialization of politics may be viewed as being highly trusted by the political sector
also. However, the judicialization of politics also leads to the politicization of the judiciary,
and there is a risk that trust in the neutrality of the Constitutional Court will be lost. Thisrisk, in conjunction with the demand for the democratic legitimacy of the appointment ofjudges, is an important issue.
In a country with a constitutional democracy, the extent to which institutions other thanthe political sector can answer the central question ‘what the democracy envisaged by theConstitution is’ is a fundamental issue to be considered within the context of therelationship between democracy and the Constitutional Court.

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