Aug. 5, 1988
Amended by Nov. 30,
1991
Dec. 22, 1994
Aug. 4, 1995
Dec. 13,
1997
Jan. 19, 2002
Jan. 26, 2002
Mar. 12,
2003
Mar. 31, 2005
Jul. 29,
2005
Aug. 5, 1988
Amended by Nov. 30,
1991
Dec. 22, 1994
Aug. 4, 1995
Dec. 13,
1997
Jan. 19, 2002
Jan. 26, 2002
Mar. 12,
2003
Mar. 31, 2005
Jul. 29,
2005
CHAPTER I GENERAL
PROVISIONS
Article 1
(Purpose)
The purpose of this Act is to set forth
provisions necessary for the organization and operation of the
Constitutional Court and its
adjudication
procedures.
Article 2 (Jurisdiction)
The
Constitutional Court shall have jurisdiction over the
following issues:
Constitutionality of statutes upon the request of the ordinary
courts;
2. Impeachment;
3. Dissolution of a
political party;
4. Competence dispute between state
agencies, between a state agency and a local government, or
between local
governments; and
5.
Constitutional complaint.
Article 3 (Composition)
The Constitutional Court shall consist of nine
Justices.
Article 4 (Independence of
Justices)
The Justices shall adjudicate independently
according to the Constitution and laws, guided by their
consciences.
Article 5 (Qualifications of
Justices)
(1) The Justices shall be appointed from
among those who are forty or more years of age and have held
any of the following
positions for fifteen or more
years: Provided, That the periods of service of the person who
has held two or more following
positions shall be
aggregated.
Judge, public
prosecutor or attorney;
2. Person who is qualified as
attorney, and has been en gaged in legal affairs in a state
agency, a state-owned or public
enterprise, a
government-invested institution or other corporation; or
3. Person who is qualified as attorney, and has held a
position equal to or higher than assistant professor of law in
an
accredited college.
(2) No person
falling under any of the following shall be appointed Justice:
Person who is disqualified to
serve as a public official under the pertinent laws and
regulations;
2. Person who has been criminally
sanctioned with a sentence of imprisonment without forced
labor or more severe
sentence; or
3. Person
for whom five years have not yet passed since his or her
dismissal resulting from impeachment.
Article 6
(Appointment of Justices)
(1) The Justices shall be
appointed by the President of the Republic. Among the
Justices, three shall be elected by the National Assembly, and
three shall be designated by the Chief Justice of the Supreme
Court. (2) The Justices shall be appointed, elected or
designated after a Per sonnel Hearing held by the National
Assembly. In this event, the President shall request a
Personnel Hearing before he or she appoints the
Justices(except the Justices who shall be elec ted by the
National Assembly or designated by the Chief Justice of the
Supreme Court) and the Chief Justice of the Supreme Court
shall requ est a Personnel Hearing before he or she designates
the Justices.
(3) In the event the term of a Justice
expires or a vacancy occurs during the term of office, a
successor shall be appointed within
thirty days
reckoned from the date on which the term expires or the
vacancy occurs: Provided, That if the term of a Justice
who was elected by the National Assembly expires or
the vacancy occurs during adjournment or recess of the
National
Assembly, the National Assembly shall elect
his or her successor within thirty days reckoned from the
commencement of the
next session.
Article 7
(Term of Justices)
(1) The term of Justices shall be
six years and may be renewed.
(2) The retirement age of
a Justice shall be sixty-five: Provided, That the retirement
age of the President of the Constitutional Court
shall
be seventy.
Article 8 (Guarantee of Justices'
Status)
No Justice shall be removed from his or her
office against his or her own will unless he or she falls
under any of the following:
When an impeachment decision is rendered against him or her;
or
2. When he or she is criminally sanctioned with a
sentence of imprisonment without forced labor or more severe
sentence.
Article 9 (Prohibition of Justices'
Participation in Politics)
No Justice shall join a
political party or participate in politics.
Article 10
(Rulemaking Power)
(1) The Constitutional Court may
make rules of adjudication procedure, internal discipline and
management of general affairs, to
the extent that
those are not inconsistent with this Act and other laws.
(2) The Constitutional Court Rules shall be promulgated
through publication in the Gazette of the government.
Article 10-2 (Presentation of Opinions on
Legislation)
Where the President of the
Constitutional Court deems that any enactment or amendment of
the Acts relating to organization, personnel affairs,
operation, adjudication procedure and other functions of the
Constitutional Court is required, the President may present in
writing opinions thereon to the National Assembly.
Article 11 (Expenses)
(1) The expenses of the
Constitutional Court shall be appropriated independently in
the budget of the state.
(2) The reserve funds shall be
included in the expenses referred to in paragraph (1).
CHAPTER II ORGANIZATION
Article 12 (President of
Constitutional Court)
(1) The Constitutional Court
shall have a president.
(2) The President of the Republic
shall, with the consent of the National Assembly, appoint the
President of the Constitutional
Court among the
Justices.
(3) The President of the Constitutional Court
shall represent the Constitutional Court, take charge of the
affairs of the Constitutional
Court, and direct and
supervise those public officials under his or her
authority.
(4) Whenever the President of the
Constitutional Court is unable to perform the duties of his or
her office due to an accident or the
office is vacant,
other Justices shall, in the order prescribed by the
Constitutional Court Rules, perform such duties in place
of the President.
Article 13 Repealed.
Article 14 (Prohibition of Concurrent Service)
The Justices shall not conduct any business for profit
or hold concurrently any of the following offices:
Member of the National Assembly or a
local council;
2. Public official in the National
Assembly, the Executive or an ordinary court; or
3.
Advisor, officer or employee of a corporation and
organization, etc.
Article 15 (Treatment of
President of Constitutional Court and other Justices)
(1) The salaries and other treatments for the President
and other Justices shall respectively be equal to those of
the Chief
Justice and other Justices of the Supreme Court.
-->(1)
The treatment and remuneration of the President of the
Constitutional Court shall be the same as that of the Chief
Justice of the Supreme Court, and the Justices of the
Constitutional Court shall be in political service and their
treatment and remuneration shall be the same as that of the
Justices of the Supreme Court.
(2) Repealed.
Article 16 (Council of Justices)
(1) The
Council of Justices shall consist of all Justices, and the
President of the Constitutional Court shall serve as the
Chairperson.
(2) Decisions of the Council of
Justices shall be taken with the attendance of seven or more
Justices and by the affirmative vote of
a majority of
the Justices present.
(3) The Chairperson shall have the
right to vote.
(4) Decisions on the following matters
shall be taken by the Council of Justices:. Matters concerning the enactment,
amendment of the Constitutional Court Rules and the matters
concerning a presentation of opinions on legislation pursuant
to Article 10-2;
2. Matters concerning a request for
budget, appropriation of reserve funds and settlement of
accounts;
3. Matters concerning the appointment or
dismissal of the Secretary General, Deputy Secretary General,
Constitution Research Officers and public officials of Grade
III or higher; and
4. Matters deemed specially
important and presented by the President of the Constitutional
Court for discussion.
(5) Matters necessary for
the operation of the Council of Justices shall be stipulated
in the Constitutional Court Rules.
Article 17
(Department of Court Administration)
(1) In order to
manage the administrative affairs of the Constitutional Court,
the Department of Court Administration shall be
established in the Constitutional Court.
(2)
There shall be a Secretary General and a Deputy Secretary
General in the Department of Court Administration.
(3)
The Secretary General shall, under the direction of the
President of the Constitutional Court, take charge of the
affairs of the
Department of Court Administration and
direct and supervise those public officials under his or her
authority.
(4) The Secretary General may attend the
National Assembly or the State Council and speak about the
administration of the Constitutional Court.
(5) The
defendant in the administrative litigation challenging an
action of the President of the Constitutional Court shall be
the
Secretary General.
(6) The Deputy Secretary
General shall assist the Secretary General. Whenever the
Secretary General is unable to perform his
or her
duties due to an accident, the Deputy Secretary General shall
act on behalf of him or her.
(7) The Department of Court
Administration shall have offices, bureaus and
divisions.
(8) The office chief shall be assigned to the
office, the bureau chief, to the bureau, and the division
chief, to the division. There
may be directors or
officers under the Secretary General, the Deputy Secretary
General, the office chief or the bureau chief
for
assisting in policy planning, establishment of plans,
research, investigation, examination, evaluation and public
relations.
(9) The organization and the scope of
functions of the Department of Court Administration, the
prescribed number of public
officials assigned to the
Department of Court Administration and other necessary
matters, which are not prescribed in this
Act, shall be
stipulated in the Constitutional Court Rules.
Article
18 (Public Officials of Department of Court Administration)
(1) The Secretary General shall be appointed as a
public official in Political Service, and his or her salary
shall be equal to that
of a member of the State
Council.
(2) The Deputy Secretary General shall be
appointed as a public official of Political Service, and his
or her salary shall be equal
to that of a
Vice-Minister.
(3) The office chiefs shall be appointed
as public officials of Grade I or II in general service; the
bureau chiefs as public officials of Grade II or III in
general service; the directors and officers-in-charge as
public officials of Grade II through IV in general service;
and the division chiefs as public official of Grade III or IV
in general service: Provided, That one officer-in-charge may
be appointed as public officials corresponding to Grade III or
IV in extraordinary civil service.
(4) Public officials
of the Department of Court Administ ration shall be appointed
and dismissed by the President of the
Constitutional
Court: Provided, That the appointment and dismissal of public
officials of Grade III or higher shall be subject to
a
resolution of the Council of Justices.
(5) The President
of the Constitutional Court may request other state agencies
to dispatch their public officials so as to have them
serve as public officials of the Department of Court
Administration.
(6) Except as otherwise provided in this
Act, the provisions concerning public officials in General
Service prescribed by the State
Public Officials Act,
shall apply to the public officials of the Department of Court
Administration.
Article 19 (Constitution Research
Officers)
(1) The Constitutional Court shall have
Constitution Research Officers equivalent to the number as
provided by the Constitutional Court Rules.
of whom
shall be provided by the Constitutional Court Rules.
(2)
The Constitution Research Officers shall be public officials
in special service.
(3) The Constitution Research
Officers shall be engaged in investigation and research
concerning the deliberation and adjudication of cases under
the order of the President of the Constitutional Court. (4)
The Constitution Research Officers shall be appointed by the
President of the Constitutional Court through a resolution of
the Council of Justices from those falling under any of the
following subparagraphs:
. A
person who is qualified as a judge, a public prosecutor, or an
attorney-at-law;
2. A person who has been in a
position equal to or higher than an assistant professor of law
in an accredited college or university;
3. A person
who has been engaged in legal affairs for five or more years
as a public official of Grade IV or higher in the state
agencies, such as the National Assembly, the Executive, or
courts;
4. A person who has obtained a doctorate in
law, and engaged in legal affairs for five or more years in
the state agencies, such as the National Assembly, the
Executive, courts, or the Constitutional Court; and
5. A person who has obtained a doctorate in law, and engaged
in legal affairs for five or more years in an accredited
research institute, such as a college or university as
stipulated by the Constitutional Court Rules.
(5)
Repealed.
(6) Any person falling under one of the
following subparagraphs shall not be appointed as Constitution
Research Officers:
. A person
falling under one of each subparagraph of Article 33 of the
State Public Officials Act;
2. A person who has been
sentenced to imprisonment without prison labor or a heavier
punishment; and
3. A person for whom 5 years have not
elapsed after the dismissal due to a decision of impeachment.
(7) The term of office of Constitution Research
Officers shall be 10 years, but a consecutive appointment may
be permitted, and their age limit shall be 60 years old.
(8) When any Constitution Research Officer comes to fall
under one of each subparagraph of paragraph (6), the officer
shall be deservedly retired.
(9) The President of the
Constitutional Court may request other state agencies to
dispatch their public officials to the Constitutional Court so
as to have them serve as the Constitution Research
Officers.
(10) The Deputy Secretary General may hold an
additional position as a Constitution Research Officer. tion
Research Officers.
Article 19-2 (Assistant Constitution
Research Officer)
(1) Where any Constitution Research
Officer is newly appointed, he or she shall be appointed as
such Officer after having been appointed as an Assistant
Constitution Research Officer and serving a the period of 3
years, and then taking into account the service records:
Provided, That an appointment as an Assistant Constitution
Research Officer may be exempted or a service period as such
may be reduced by taking into account his or her career and
service abilities, etc. under the conditions as stipulated by
the Constitutional Court Rules.
(2) The Assistant
Constitution Research Officer shall be appointed by the
President of the Constitutional Court through a resolution of
the Council of Justices.
(3) The Assistant Constitution
Research Officer shall be a public official in extraordinary
service, and his remuneration and criteria for promotion shall
be based on the practices of those for the Constitution
Research Officer.
(4) Where the service records of an
Assistant Constitution Research Officer is inferior, the
officer may be dismissed through a resolution of the Council
of Justices.
(5) The service period of Assistant
Constitution Research Officer shall be counted in the tenure
of service as a Constitution Research Officer as referred to
in this Act and other laws and regulations.
Article 20
(Aide Office of President of Constitutional Court, etc)
(1) The Constitutional Court shall have the aide
office of the President of the Constitutional Court.
(2)
A Chief Aide shall be assigned to the aide office of the
President of the Constitutional Court. The Chief Aide shall be
appointed
as a public official of Grade I in Special
Service, and take charge of confidential affairs under the
direction of the President of
the Constitutional
Court.
(3) Matters necessary for the organization and
operation of the aide office of the President of the
Constitutional Court shall be
prescribed by the
Constitutional Court Rules.
(4) The Constitutional Court
shall have the aides of the Justices.
(5) The aides of
the Justices shall be appointed as public officials of Grade IV
in General or Special Service, and take charge of
confidential affairs under the direction of the
Justices.
Article 21 (Clerks and Courtroom Guards)
(1) Clerks and courtroom guards shall be assigned to
the Constitutional Court.
(2) The President of the
Constitutional Court shall designate clerks and courtroom
guards from among the personnel of the
Department of
Court Administration.
(3) Clerks shall take charge of the
affairs concerning the preparation, safekeeping or service of
documents related to cases
under the direction of the
presiding Justice.
(4) Courtroom guards shall maintain
order in the courtroom and execute other affairs directed by
the presiding Justice.
CHAPTER III GENERAL PROCEDURE OF
ADJUDICATION
Article 22 (Full Bench)
(1) Except as provided in this Act, the adjudication
of the Constitutional Court shall be assigned to the Full
Bench composed of all
the Justices.
(2) The
presiding Justice of the Full Bench shall be the President of
the Constitutional Court.
Article 23 (Quorum)
(1) The Full Bench shall review a case by and with
the attendance of seven or more Justices.
(2) The Full
Bench shall make a decision on a case by the majority vote of
Justices participating in the final discussion : It
requires a vote of six or more Justices in cases of
falling under any of the following:
When it makes a decision of upholding on
the constitutionality of statutes, impeachment, dissolution of
a political party or
constitutional complaint; and
2. When it overrules the precedent on interpretation
and application of the Constitution or laws made by the
Constitutional
Court.
Article 24
(Exclusion, Recusal and Evasion)
(1) When a Justice
falls under any of the following, the Justice shall be
excluded from the execution of the Justice's services:
When the Justice is a party or
is or was the spouse of a party;
2. When the Justice
is or was a relative of a party [to the
proceeding];<Amendment March 31, 2005, Effective Date
January 1, 2008>
3. When the Justice bears
testimony or gives an expert opinion on the case;
4.
When the Justice is or was the counsel of a party with respect
to the case; or
5. When the Justice was involved in
the case outside of the Constitutional Court by reason of his
duties or profession.
(2) The Full Bench may, ex
officio or upon motion by a party, make a decision to exclude
a Justice.
(3) When there is a circumstance in which it
is difficult to expect the impartiality of a Justice, a party
may move to recuse the
Justice: Provided, That this
shall not apply when the party has appeared and entered a plea
on the hearing date.
(4) A party may not move to recuse
two or more Justices for the same case.
(5) When there
exists a cause referred to in paragraph (1) or (3), the
Justice may recuse himself with the permission of the
presiding Justice.
(6) The provisions of
Articles 44, 45, 46 (1), (2) and 48 of the Civil Procedure Act
shall apply mutatis mutandis to the adjudication on the motion
to exclude or recuse.
on the motion to exclude or
recuse.
Article 25 (Legal Representative)
(1)
When the Government is a party (including an inter vener.
Hereinafter the same shall apply) in any proceeding, the
Minister of
Justice shall represent it.
(2) In
any proceeding, a state agency or local government which is a
party, may select an attorney or an employee who is
qualified as an attorney as a counsel and have him
pursue the proceeding.
(3) When a private person is a
party, in any proceeding, such person shall be represented by
an attorney: Provided, That this
shall not apply when
he is an attorney.
Article 26 (Form of Request for
Adjudication)
(1) The request for an adjudication of
the Constitutional Court shall be made by submitting to the
Constitutional Court a written
request as prescribed
for each matter to be adjudged: Provided, That in an
adjudication on the constitutionality of statutes, it
shall be substituted by a written request by the
court, and in an adjudication on impeachment, by an authentic
copy of the
impeachment resolution of the National
Assembly.
(2) Evidentiary documents or reference
materials may be appended to the written request.
Article 27 (Service of Written Request)
(1)
The Constitutional Court shall, upon receiving a written
request, serve without delay a certified copy thereof on the
respondent
agency or respondent (hereinafter referred
to as "respondent").
(2) In case of a request for an
adjudication on the constitutionality of statutes, a certified
copy of the written request shall be
served to the
Minister of Justice and the parties of the ordinary court case
concerned.
Article 28 (Correction of Request for
Adjudication)
(1) When the presiding Justice
determines that a request for adjudication fails to meet its
requirements but may satisfy them by
correction, the
Justice shall require that request be corrected within a
reasonable time.
(2) The provision of Article 27 (1)
shall be applicable mutatis mutandis to a written correction
as referred to in paragraph (1).
(3) When a correction
is made under paragraph (1), the corrected request shall be
deemed to have been made at the time the
initial
request was submitted.
(4) The period for correction as
referred to in paragraph (1) shall not be included in
calculating the period of adjudication under
Article
38.
Article 29 (Presentation of Written Answer)
(1) The respondent may, upon receiving a written
request or correction, present a written answer to the
Constitutional Court.
(2) The written answer shall
include an answer to the claim and the bases of the request
for adjudication.
Article 30 (Method of Review)
(1) The adjudication of impeachment, dissolution of
a political party or competence dispute shall be conducted
through oral
arguments.
(2) The adjudication on
the constitutionality of statutes or constitutional complaint
shall be conducted without oral arguments: If it
is
deemed necessary, the Full Bench may hold oral proceedings,
and hear the statements of parties, interested persons
and amici curiae.
(3) When the Full Bench holds
oral proceedings, it shall fix the date and summon parties and
interested persons.
Article 31 (Inspection of Evidence)
(1) When the Full Bench deems necessary for the
review of a case, it may, upon motion by a party or ex
officio, inspect evidence
as follows:
To examine the party or witness;
2. To demand presentation of documents, books,
articles and other evidentiary materials which are possessed
by the
parties or interested persons, and to place
them in custody;
3. To order a person of special
learning and experience to evaluate evidence; and
4.
To verify the nature or condition of relevant goods, persons,
places and other things.
(2) The presiding
Justice may, if necessary, designate one of Justices to
inspect evidence under paragraph (1).
Article 32
(Demand, etc. for Presentation of Materials)
The
Full Bench may, by a ruling, make inquiries concerning facts
necessary for the adjudication to other state agencies or the
organs of public organizations, or demand them to send
records or present materials: Provided, That with respect to
records on
a case for which a trial, prosecution or
criminal investigation is under way, sending of the records
shall not be demanded.
Article 33 (Place of
Adjudication)
The oral arguments of the adjudication
and the pronouncement of final decision shall be made in the
courtroom: When the
President of the Constitutional
Court deems necessary, it may be made in a place outside of
the courtroom.
Article 34 (Opening of Proceedings to
Public)
(1) The oral arguments of the adjudication
and the pronouncement of the decision shall be open to the
public: Any review without
oral arguments and
deliberation shall not be open to the public.
(2) The
proviso of Article 57 (1) and the provisions of Article 57
(2), (3) of the Court Organization Act shall be applicable
mutatis
mutandis to the proceedings of the
Constitutional Court.
Article 35 (Direction of
Proceedings and Police Power in Courtroom)
(1) The
presiding Justice shall keep order in the courtroom, and
preside over oral arguments and deliberations.
(2) The
provisions of Articles 58 to 63 of the Court Organization Act
shall apply mutatis mutandis to the maintenance of order and
the use of language in the courtroom of the
Constitutional Court.
Article 36 (Final Decision)
(1) When the Full Bench finishes the review, it
shall make a final decision.
(2) Upon making a final
decision, a written decision stating the following matters
shall be prepared, signed and sealed by all the
Justices participating in the adjudication:
Number and title of the case;
2.
Indication of the parties and persons who pursue the
proceeding for them or their counsels;
3. Holding;
4. Rationale; and
5. Date of decision.
(3) Any Justice who participates in an
adjudication shall express his or her opinion on the written
decision.
(4) When a final decision is pronounced, the
clerk shall prepare without delay an authentic copy of the
written decision and
serve it on the parties.
(5) The final decision shall be made public through
publication in the Gazette of the government.
Article
37 (Expenses, etc. of Adjudication)
(1) The expenses
for adjudication by the Constitutional Court shall be borne by
the state: The Expenses for the inspection of
evidence
upon request of a party may be borne by the party as
prescribed in the Constitutional Court Rules.
(2) The
Constitutional Court may order a person requesting an
adjudication on a constitutional complaint to pay a deposit
money
as prescribed in the Constitutional Court Rules.
(3) The Constitutional Court may order a transfer of all
or part of the deposit money to the national treasury as
prescribed in the
Constitutional Court Rules, in case
of falling under any of the following:
When a request for adjudication on
constitutional complaint is dismissed; or
2. When a
request for adjudication on constitutional complaint is
rejected, and such a request is deemed to be an abuse of
right.
Article 38 (Time Limit of
Adjudication)
The Constitutional Court shall
pronounce the final decision within one hundred eighty days
after it receives the case for
adjudication: Provided,
That if the attendance of seven Justices is impossible due to
vacancies of Justices, the period of
vacancy shall not
be included in calculating the period of adjudication.
Article 39 (ne bis in idem)
The
Constitutional Court shall not adjudicate again the same case
on which a prior adjudication has already been made.
Article 40 (Applicable Provisions)
(1) Except
as otherwise provided in this Act, the provisions of laws and
regulations relating to civil litigation shall apply mutatis
mutandis to the procedure for adjudication of the
Constitutional Court within the limit not contrary to the
nature of constitutional adjudication. Together with such
provisions, laws and regulations relating to criminal
litigation shall apply mutatis mutandis to the adjudication on
impeachment and the Administrative Litigation Act to the
adjudication on competence dispute and constitutional
complaint.
(2) In case referred to in the latter part of
paragraph (1), if the laws and regulations relating to the
criminal litigation or the
Administrative Litigation
Act conflict with those relating to the civil litigation, the
latter shall not be applicable mutatis mutandis.
CHAPTER IV SPECIAL ADJUDICATION
PROCEDURES
SECTION 1 Adjudication on the Constitutionality of Statutes
Article 41 (Request
for Adjudication on the Constitutionality of Statutes)
(1) When the issue of whether or not statutes are
constitu tional 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) The motion of the party as referred to
in paragraph (1) shall be in writing, stating matters as
referred to in sub- paragraphs 2
to 4 of Article
43.
(3) The provisions of Article 254 of the Civil
Procedure Act shall apply mutatis mutandis to the examination
of the writ- ten motion referred to in paragraph (2).
(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 42 (Suspension of Proceedings, etc.)
(1) When an ordinary court requests to the
Constitutional Court an adjudication on the constitutionality
of statutes, the
proceedings of the court shall be
suspended until the Constitutional Court makes a decision on
the constitutionality of
statutes: Provided, That if
the court deems urgent, the proceedings other than the final
decision may be proceeded.
(2) The period in which a
proceeding is suspended under the main sentence of paragraph
(1) shall not be included in calculating the detention period
as prescribed in Article 92 (1) and (2) of the Criminal
Procedure Act and Article 132 (1) and (2) of the Military
Court Act and the period of judgment under Article 199 of the
Civil Procedure Act.
Article 43 (Matters to be Stated in
Written Request)
When an ordinary court requests to
the Constitutional Court an adjudication on the
constitutionality of statutes, the court's
written
request shall include the following matters:
1. Indication of the requesting court;
2. Indication of the case and the parties;
3.
The statute or any provision of the statute which is
interpreted as unconstitutional;
4. Bases on which it
is interpreted as unconstitutional; and
5. Other
necessary matters.
Article 44 (Opinions of
Parties, etc. to Litigious Case)
The parties to the
original case and the Minister of Justice may submit to the
Constitutional Court an amicus brief on the issue of
whether or not statutes are constitutional.
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.
Article 46 (Service of Written
Decision)
The Constitutional Court shall serve an
authentic copy of the written decision on the requesting court
within fourteen days from
the day of decision. In this
case, if the requesting court is not the Supreme Court, it
shall be served through the Supreme Court.
Article 47
(Effect of Decision of Unconstitutionality)
(1) Any
decision that statutes are unconstitutional shall bind the
ordinary courts, other state agencies and local
governments.
(2) Any statute or provision thereof decided
as unconstitutional shall lose its effect from the day on
which the decision is made:
Provided, That the
statutes or provisions thereof relating to criminal penalties
shall lose their effect retroactively.
(3) In case
referred to in the proviso of paragraph (2), the retrial may
be allowed with respect to a conviction based on the
statutes or provisions thereof decided as
unconstitutional.
(4) The provisions of the Criminal
Procedure Act shall apply mutatis mutandis to the retrial as
referred to in paragraph (3).
SECTION 2 Adjudication on
Impeachment
Article 48 (Institution of Impeachment)
If a public official who falls under any of the
following violates the Constitution or laws in the course of
execution of his or her
services, the National Assembly
may pass a resolution on the institution of impeachment as
prescribed in the Constitution and the National Assembly Act:
President of the Republic,
Prime Minister, Members of the State Council or Ministers;
2. Justices of the Constitutional Court, judges or
Commissioners of the National Election Commission;
3.
Chairman and Commissioners of the Board of Audit and
Inspection; or
4. Other public officials as prescribed
by relevant laws.
Article 49 (Impeachment
Prosecutor)
(1) For the adjudication on impeachment,
the Chairperson of the Legislation and Justice Committee of
the National Assembly shall
be the impeachment
prosecutor.
(2) The impeachment prosecutor shall request
adjudication by presenting to the Constitutional Court an
authentic copy of the
written resolution of the
institution of impeachment, and may examine the accused person
in the oral proceedings.
Article 50 (Suspension of
Exercise of Power)
No person against whom a
resolution of institution of impeachment is passed shall
exercise his or her power until the
Constitutional Court
makes a decision thereon.
Article 51 (Suspension of
Impeachment Proceeding)
When a criminal proceeding
is under way for the same cause as in the request for
impeachment against the accused person,
the Full Bench
may suspend the proceeding of impeachment.
Article 52
(Non-Attendance of Party)
(1) If a party fails to
attend on the hearing date, a new date shall be
fixed.
(2) If the party fails to attend even on the
refixed date, the examination against the party shall be
allowed without his or her
attendance.
Article
53 (Decision)
(1) When a request for impeachment is
upheld, the Consti tutional Court shall pronounce a decision
that the accused person be
removed from the public
office.
(2) If the accused person has been already
removed from the public office before the pronouncement of the
decision, the
Constitutional Court shall reject the
request for impeachment.
Article 54 (Effect of
Decision)
(1) The decision of impeachment shall not
exempt the accused person from the civil or criminal
liabilities.
(2) Any person who is removed by the
decision of impeach ment shall not be a public official until
five years have passed from
the date on which the
decision is pronounced.
SECTION
3 Adjudication on Dissolution of a Political Party
Article 55 (Request for Adjudication on Dissolution of
a Political Party)
If the objectives or activities
of a political party are contrary to the basic order of
democracy, the Executive may request to the
Constitutional Court, upon a deliberation of the State
Council, an adjudication on dissolution of the political
party.
Article 56 (Matters to be Stated on Written
Request)
The written request for adjudication on
dissolution of a political party shall include the following
matters:
1. Indication of the political party
requested to be dissolved; and
2. Bases of the
request.
Article 57 (Provisional Remedies)
The Constitutional Court may, upon receiving a
request for adjudication on dissolution of a political party,
make ex officio or upon
a motion of the plaintiff or a
decision to suspend the activities of the defendant until the
pronouncement of the final decision.
Article 58
(Notification of Request, etc.)
(1) When an
adjudication on dissolution of a political party is requested,
a decision on the provisional remedies is rendered, or
the adjudication is brought to an end, the President
of the Constitutional Court shall notify the facts to the
National Assembly
and the National Election Commis
sion.
(2) The written decision ordering dissolution of a
political party shall also be served, in addition to the
defendant, on the National
Assembly, the Executive and
the National Election Commission.
Article 59 (Effect of
Decision)
When a decision ordering dissolution of a
political party is pronounced, the political party shall be
dissolved.
Article 60 (Execution of Decision)
The decision of the Constitutional Court ordering
dissolution of a political party shall be executed by the
National Election
Commission in accordance with the
Political Parties Act.
SECTION 4
Adjudication on Competence Dispute
Article 61
(Causes for Request)
(1) When any controversy on the
existence or the scope of competence arises between state
agencies, between a state
agency and a local
government, or between local governments, a state agency or a
local government concerned may
request to the
Constitutional Court an adjudication on competence
dispute.
(2) The request for adjudication referred to in
paragraph (1) may be allowed only when an action or omission
by the defendant
infringes or is in obvious danger of
infringing upon the plaintiff's competence granted by the
Constitution or laws.
Article 62 (Classification of
Adjudication on Competence Dispute)
(1) The
adjudication on competence dispute shall be classified as
follows:
. Adjudication on
competence dispute between state agencies: Adjudication on
competence dispute between the National
Assembly, the
Executive, ordinary courts and the National Election
Commission;
2. Adjudication on competence dispute
between a state agency and a local
government:
(a) Adjudication on competence
dispute between the Executive and the Special Metropolitan
City, Metropolitan City or
Province;
and
(b) Adjudication on competence dispute between the
Executive and the City/County or District which is a local
government
(hereinafter referred to as a
"Self-governing District").
Adjudication on competence dispute between local
governments:
(a) Adjudication on competence
dispute between the Special Metropolitan City, Metropolitan
City or Province;
(b) Adjudication on competence
dispute between the City/County or Self-governing District;
and
(c) Adjudication on competence dispute between the
Special Metropolitan City, Metropolitan City or Province and
the City,
County or Self-governing District.
(2) When a competence dispute relates to the affairs of
a local government concerning education, science or art under
Article 2
of the Local Educational Self-Governance
Act, the Superintendent of the Board of Education shall be the
party referred to in
paragraph (1) 2 and 3.
Article 63 (Time Limit for Request)
(1) The
adjudication on competence dispute shall be requested within
sixty days after the existence of the cause is known, and
within one hundred eighty days after the cause
occurs.
(2) The period as referred to in paragraph (1)
shall be a peremptory period.
Article 64 (Matters to be
Stated on Written Request)
The written request for
adjudication on competence dispute shall include the following
matters:
Indication of the
plaintiff or the institution whereto the plaintiff belongs,
and the person who pursues the proceeding or counsel;
2. Indication of the defendant;
3.Action or
omission by the defendant, which is the object of the
adjudication;
4. Bases of the request; and
5.
Other necessary matters.
Article 65 (Provisional
Remedies)
The Constitutional Court may, upon
receiving a request for adjudication on competence dispute,
make ex officio or upon a motion by the plaintiff a decision
to suspend the effect of an action taken by the defendant
which is the object of the adjudication until the
pronouncement of the final decision.
until the
pronouncement of the final decision.
Article 66
(Decision)
(1) The Constitutional Court shall decide
as to the existence or scope of the competence of a state
agency or a local
government.
(2) In the case as
referred to in paragraph (1), the Constitutional Court may
cancel an action of the defendant which is the cause of the
competence dispute or may confirm the invalidity of the
action, and when the Constitutional Court has rendered a
decision on admitting the request for adjudication against an
omission, the defendant shall take a disposition in pursuance
of the purport of decision.
Article 67 (Effect of
Decision)
(1) The decision on competence dispute by
the Constitution al Court shall bind all state agencies and
local governments.
(2) The decision to revoke an action
of a state agency or a local government shall not alter the
effect which has already been
given to the person whom
the action is directed against.
SECTION 5 Adjudication on
Constitutional Complaint
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.
(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.
Article 69 (Time Limit for Request)
(1) A constitutional complaint under Article 68 (1)
shall be filed within ninety days after the existence of the
cause is known, and within one year after the cause occurs:
Provided, That a constitutional complaint to be filed after
taking prior relief processes provided by other laws, shall be
filed within thirty days after the final decision in the
processes is notified.
(2) The adjudication on a
constitutional complaint under Article 68 (2) shall be filed
within thirty days after a request for an adjudication on
constitutionality of statutes is dismissed.
Article
70 (Court-Appointed Counsel)
(1) If a person who
desires to file a constitutional complaint has no financial
resources to appoint an attorney as his counsel, he
may
request the Constitutional Court to appoint a court-appointed
counsel. In this case, the time limit for request as
prescribed in Article 69 shall be counted from the day
on which such request is made.
(2) When the
Constitutional Court deems it necessary for the public
interest, it may appoint a court-appointed counsel
notwithstanding the provision of paragraph (1).
(3) The
Constitutional Court shall, upon receiving an request under
paragraph (1) or in the case of paragraph (2), appoint a
court-appointed counsel from among attorneys under the
conditions as prescribed by the Constitutional Court Rules:
Provided, That it may not appoint a court-appointed counsel in
cases where the said request for adjudication is obviously
dismissible or groundless, or where deemed to be an abuse of
rights.
(4) When the Constitutional Court makes a
decision not to appoint a court-appointed counsel, it shall
notify the appli- cant without delay. In this case, the period
from the day the request was made to the day the notification
is given shall not be included in calculating the period for
request as prescribed in Article 69.
(5) A
court-appointed counsel who has been appointed under paragraph
(3) shall submit to the Constitutional Court a written request
for adjudication indicating the matters as referred to in
Article 71, within 60 days from the date of his
appointment.
(6) The court-appointed counsel under
paragraph (3) shall be paid from the national treasury under
the conditions as prescribed by the Constitutional Court
Rules.
Article 71 (Matters to be Stated on Written
Request)
(1) The written request for adjudication on
constitutional complaint under Article 68 (1) shall include
the following matters:
Indication of the complainant and his counsel;
2.
Infringed rights;
3. Exercise or non-exercise of
governmental power by which the infringement of the right is
caused;
4. Bases of the request; and
5. Other
necessary matters.
(2) The provisions of Article
43 shall apply mutatis mutandis to matters to be stated on the
written request for adjudication on
constitutional
complaint under Article 68 (2). In this case, the term
"indication of the requesting court" used in subparagraph
1 of Article 43 shall be considered as the term
"indication of the complainant and his counsel".
(3) The
document attesting the appointment of a counsel or a written
notification of appointment of the court-appointed counsel
shall be appended to the written request for
adjudication on constitutional complaint.
Article 72
(Prior Review)
(1) The President of the
Constitutional Court may establish the Panels each of which
consists of three Justices in the
Constitutional Court
and have a Panel take a prior review of a constitutional
complaint.
(2) Repealed.
(3) In case of any of the
followings, the Panel shall dismiss a constitutional complaint
with a decision of an unanimity:
. When a constitutional complaint is filed,
without having exhausted all the relief processes provided by
other laws, or
against a judgment of the ordinary
court;
2. When a constitutional complaint is filed
after expiration of the time limit prescribed in Article 69;
3. When a constitutional complaint is filed without a
counsel under Article 25; or
4. When a constitutional
complaint is inadmissible and the inadmissibility can not be
corrected.
(4) When a Panel can not reach a
decision of dismissal referred to in paragraph (3) with an
unanimity, it shall transfer by a
decision the
constitutional complaint to the Full Bench. When a dismissal
is not decided within thirty days after requesting
the
adjudication on constitutional complaint, it shall
be deemed that a decision to transfer it to the Full Bench
(hereinafter, "decision to transfer to the Full
Bench") is made.
(5) The provisions of Articles 28, 31,
32 and 35 shall apply mutatis mutandis to the review of the
Panels.
(6) Matters necessary for the composition and
operation of the Panels shall be provided by the
Constitutional Court Rules.
Article 73 (Notification of
Dismissal or Decision to Transfer to Full Bench)
(1)
When a Panel dismisses a constitutional complaint or decides
to transfer it to the Full Bench, it shall notify it to the
complainant or his counsel and the respondent within
fourteen days from the day of decision. The same shall also
apply to
the case provided in the latter part of
Article 72 (4).
(2) When a constitutional complaint is
transferred to the Full Bench under Article 72 (4), the
President of the Constitutional Court
shall notify it
without delay to the following persons:
The Minister of Justice; and
2. A
Party to the case concerned who is not the complainant, in
case of an adjudication on constitutional complaint under
Article 68 (2).
Article 74
(Presentation of Opinions by Interested Agencies)
(1) State agencies or public organizations which are
interested in an adjudication on a constitutional complaint,
and the Minister
of Justice may present to the
Constitutional Court an amicus brief on the
adjudication.
(2) When a constitutional complaint
prescribed in Article 68 (2) is transferred to the Full Bench,
the provisions of Articles 27 (2)
and 44 shall apply
mutatis mutandis to it.
Article 75 (Decision of
Upholding)
(1) A decision to uphold a constitutional
complaint shall bind all the state agencies and the local
governments.
(2) In upholding a constitutional complaint
under Article 68 (1), the infringed basic rights and the
exercise or non-exercise of
governmental power by
which the infringement has been caused, shall be specified in
the holding of the decision of
upholding.
(3) In
the case referred to in paragraph (2), the Constitu tional
Court may revoke the exercise of governmental power which
infringes basic rights or confirm that the
non-exercise thereof is unconstitutional.
(4) When the
Constitutional Court makes a decision to uphold a
constitutional complaint against the non-exercise of
governmental power, the respondent shall take a new
action in accordance with such decision.
(5) In the case
referred to in paragraph (2), when the Constitutional Court
deems that the exercise or non-exercise of
governmental power is caused by unconstitutional laws
or provisions thereof, it may declare in the decision of
uphold ing
that the laws or provisions are
unconstitutional.
(6) In the case, referred to in
paragraph (5) and when a constitutional complaint prescribed
in Article 68 (2) is upheld, the
provisions of
Articles 45 and 47 shall apply mutatis mutandis to such
cases.
(7) When a constitutional complaint prescribed in
Article 68 (2) is upheld, and when a case concerned in an
ordinary court
involving the constitutional complaint
has been already decided by final judgment, the party may
request a retrial of the case
before the
court.
(8) In the retrial referred to in paragraph (7),
the provisions of the Criminal Procedure Act shall apply
mutatis mutandis to criminal
cases, and those of the
Civil Procedure Act to other cases.
CHAPTER V PENAL
PROVISIONS
Article 76 (Penal
Provisions)
Any person who falls under any of the
following subpara graphs, shall be punished by an imprisonment
not more than one year,
or a fine not exceeding one
million won:
Person who is
summoned or commissioned as a witness, expert witness,
interpreter or translator by the Constitutional
Court
but fails to attend without any justifiable reason;
2.
Person who is demanded or ordered to present articles of
evidence by the Constitutional Court but fails to present them
without any justifiable reason; or
3. Person
who refuses, interferes with or evades an inspection or
examination of the Constitutional Court without any
justifiable reason.
Article 1
(Effective Date)
This Act shall enter into force on
September 1, 1988: Provided, That the appointment of the
President, Standing Justices and
other Justices of the
Constitutional Court under this Act, and the preparation for
the enforcement of this Act may be done before
this Act
enters into force.
Article 2 (Repealed Act)
The Constitutional Committee Act (Act No. 2530) shall
hereby be repealed.
Article 3 (Transitional Measures
concerning Pending Cases)
Cases pending in the
Constitutional Committee at the time when this Act enters into
force, shall be transferred to the Constitutional
Court.
In this case, the adjudication procedures already done shall
not lose effect.
Article 4 (Transitional Measures
concerning Matters Occurred)
This Act shall also
apply to matters which occurred before this Act enters into
force: Provided, That it shall not prejudice the
effect
in force under the Constitutional Committee Act before the
enforcement of this Act.
Article 5 (Transitional
Measures concerning Previous Personnel)
Public
officials in the Secretariat of the Constitutional Committee
at the time when this Act enters into force shall be
considered to
be appointed as those in the Department of
Court Administration of the Constitutional Court.
Article 6 (Transitional Measures concerning Budget)
The budget managed by the Constitutional Committee
at the time when this Act enters into force shall be
considered to be under
the control of the Constitutional
Court.
Article 7 (Succession of Rights and Duties)
Rights and duties which the Constitutional Committee
has at the time when this Act enters into force shall be
succeeded to by the
Constitutional Court.
Article 8 Omitted.