Judiciary of South Korea

Organizational chart for judicial system in Government of the Republic of Korea

The judiciary of South Korea (Korean: 대한민국 사법부, 대한민국의 사법기관) is the judicial branch (사법부) of the South Korean central government, established by Chapter 5 and 6 of the Constitution of South Korea.^[1]

Under Chapter 5, the Constitution defines ordinary courts for all cases except those involving constitutional review. It also defines military courts as extraordinary courts for military justice matters. Both ordinary courts and military courts have the Supreme Court of Korea as their highest court.^[2]

Generally, ordinary courts have a three-level hierarchy with independent judges, 14 Supreme Court Justices by statute, and one Chief Justice of Supreme Court among the justices. Military courts, on the other hand, are organized only in the first instance of a three-level hierarchy at peacetime. Their final appellate always falls under the jurisdiction of the Supreme Court, even in wartime.^[2]

Under Chapter 6 of the Constitution, the Constitutional Court of Korea is defined as the highest court on matters of constitutional review, including judicial review, impeachment, and dissolution of unconstitutional political parties; competence dispute among government agencies; and Constitutional complaint. It comprises nine justices by the constitution and one President of Constitutional court among the justices.^[2]

The Chief Justice of the Supreme Court and the President of Constitutional Court are treated as two equivalent heads of the judiciary branch in South Korea by Article 15 of the Constitutional Court Act.^[3] However, since relationship between the Supreme Court and the Constitutional Court is not thoroughly defined anywhere in Constitution of South Korea and other related statutes,^{[citation needed]} these two highest courts of South Korea have sometimes struggled against each other with regard to jurisdiction.^{[citation needed]}

Institutional traits

Diversified supreme courts

See also: Supreme court § Civil law jurisdictions

As influenced from European judiciaries^[4] such as the Austrian judicial system and German judicial system,^[5] the contemporary South Korean judiciary divides its role of highest court into two apex courts.

• Supreme Court of Korea: as the highest ordinary court of South Korea, the Supreme Court of Korea has comprehensive final appellate jurisdiction over every case except constitutional matters.
• Constitutional Court of Korea: the constitutional court has original jurisdiction over major constitutional matters including judicial review on constitutionality of statute, review of all impeachments, decisions on prohibition and dissolution of political parties, competence disputes on demarcation of power among central government agencies and local governments, and adjudication of constitutional complaints.

American-style legal education

Further information: Law schools in South Korea

Before South Korea adopted the American law school system (법학전문대학원) in 2007, South Korea trained its legal professionals mainly by the Judicial Research and Training Institute (JRTI, 사법연수원). The trainees at JRTI were selected by a nationwide exam on jurisprudence called the 'Judicial exam' (사법시험). These trainees were commonly trained and competed against each other in the JRTI for 2 years, as their career option after graduation was restricted according to graduation records of JRTI.^{[citation needed]} Another route for legal professionals was direct recruitment by the South Korean Armed Forces as Judge Advocates (군법무관).

After the 2007 reform, all legal professionals in South Korea (except paralegals such as judicial scriveners) have since been trained by the American-style three-year law school system.^[6]

Ordinary courts

The ordinary courts (일반법원 or 법원), of South Korea are established by Chapter 5 of the Constitution. All ordinary courts are under the jurisdiction of the national judiciary. These ordinary courts are divided into the Supreme Court and other lower courts under Article 101(2) of the Constitution.^[1] The Constitution itself does not exactly guarantee a three-level instance system; Article 101(2) states, according to the Constitutional Court,^[7] that final appellate jurisdiction of ordinary cases should always be with the Supreme Court. Thus, enacting some cases outside of the Constitutional Court's jurisdiction as available with only one chance of appeal or no chance of appeal is constitutionally valid in South Korea unless such cases are finally ruled in the Supreme Court.^{[8][clarification needed]}

The statutory ground for the hierarchy of ordinary courts, including a three-tiered instance system for typical cases, is defined by the Court Organization Act of South Korea.^[9] Under article 3(1), 28, and 28-4 of the Court Organization Act, the hierarchy of ordinary courts in South Korea has three levels: District Courts (plus family court, bankruptcy court, and administrative court, which are specialized courts on matters of family, bankruptcy and administration laws), High Courts (plus patent court which is specialized appellate court on intellectual property matters, for reviewing ruling or decision made by the 'Intellectual Property Trial And Appeal Board^[10]'^[11]), and the Supreme Court. The other lower courts at specified levels of article 101(2) of the Constitution are divided into six courts, making a total of 7: Supreme Court, High Court, Patent Court, District Court, Family Court, Administrative Court, and Bankruptcy Court. Branch courts and municipal courts are regarded as part of District Court and Family Court under article 3(2) of the Act.^[9]

Supreme Court of Korea

South Korean Supreme Court building in Seocho, Seoul

Main article: Supreme Court of Korea

The Supreme Court (대법원), seated in Seocho-gu, Seoul, consists of 14 Supreme Court Justices, including one Chief Justice.

The Chief Justice of the Supreme Court is appointed by the President of South Korea with the consent of the National Assembly and has authority over administration of all ordinary courts. Other Justices are also appointed by President of South Korea with consent from the National Assembly, though candidates for new Justices are recommended by the Chief Justice.

Justices and the Chief Justice must be at least 45 years old and must have at least 20 years of experience practicing law with a license of attorney at law. Justices cannot be older than 70. They serve for six-year terms. The Chief Justice cannot be reappointed, but the terms of the other Justices are renewable under article 105(2) of the Constitution. However, no Justices have tried to renew their term in the Sixth Republic since it could harm the independence of judiciary by increasing the influence of the president.

Judges in Research Division

Justices in the Supreme Court are assisted by seconded Judges from sub-Supreme courts called Judges in Research Division (재판연구관) or Research Judges. This secondment is decided by the Chief Justice of Supreme Court. Under Article 44 of Court Organization Act, the Chief Justice has the power to transfer every single Judge from one of ordinary courts to any other ordinary court in South Korea.

The function of seconded Judges in Supreme Court is similar to law clerks in ordinary courts; they serve about 2 years as judicial assistant for Justices, yet not all seconded Judges are not individually attached to one of Justice, as some of seconded Judges serve in research groups or panels to assist decisions of whole Supreme Court.

National court administration

Administration affairs (including fiscal, personnel, and human resource affairs) of all ordinary courts in South Korea are governed by an institution called the National Court Administration (NCA, 법원행정처) which is established in the Supreme Court under Article 19 of the Court Organization Act.^[12] The head of the NCA is appointed by a Chief Justice and among Justices. Though this centralized power on the Chief Justice can eventually harm independence of individual judges and even Justices, the NCA also serves for judicial independence from other branches of government.

High Courts and District Courts

Below the Supreme Court are appellate courts which are called High Courts (고등법원). They are stationed in six of the country's major cities. High Courts typically consist of a panel of three judges.

Below the High Courts are District Courts (지방법원) and its Branch Courts (지방법원 지원) which exist in most of the large cities of South Korea.

Below the District Courts and Branch Courts are Municipal Courts (시·군법원) positioned all over the country. They are limited to small claims and petty offenses. Municipal courts usually do not have jurisdiction over criminal cases. Specialized courts (전문법원) also exist for family, administrative, bankruptcy and patent cases.

Judges

Judges (판사), except Supreme Court Justices and the Chief Justice, serve in ordinary courts and are appointed by the Chief Justice with the consent of the Council of Supreme Court Justices. Judges serve for 10-year renewable terms up to age of 65.

After the reform of ordinary courts in early 2010s, at least 10 years of experience practicing law with license of attorney at law is required for Judges.^[13] The goal of reform was changing the structure of ordinary courts to resemble courts in a common law system such as the United States. Reforms included abolishing advancement and promotion opportunities for Judges to become the heads of each High Court and District Court. As of 2022, the heads of each High Court and District Court (which are referred to as the Chief Judges of each court) are mainly elected among and by Judges in each court, as well as appointed by the Chief Justice in Supreme Court. Prior to reform, all Judges were appointed just after finishing a two-year training program in the JRTI.

Judges in South Korea are protected from external political pressure under Article 106(1) of the Constitution. No judge can be removed from office unless imprisoned as criminal punishment. However, Judges can be refused from renewing their terms and can also be transferred to different courts against their will.

Judicial Assistant Officials

Judicial Assistant Officials (JAO, 사법보좌관) are Judge-equivalent officers who have limited power to rule over several procedural matters under the supervision of Judges. The JAO system is mainly influenced by a German judicial system called Rechtspfleger.

Following Article 54 of the Court Organization Act, JAOs are appointed among court officials with five to 10 years of experience on procedural matters in court. Unless a party raises objection on the ruling of JAOs, their rulings have the equivalent power that of a Judge. When the ruling of a JAO is challenged with objection, however, the supervising Judge must make a decision whether or not to accept such objection.

Law Clerks

From year 2011, fresh graduates from law school are selected as law clerks (재판연구원) to assist Judges in High Courts and District Courts for two to three years under Article 53-2 of the Court Organization Act. Law clerks in South Korea are recruited by each of the six High courts, though some of top-tier graduates are appointed as Judicial Researchers at the Supreme Court—a law clerk for Supreme Court Justices. It is noteworthy that law clerks in South Korea are not recruited by individual Judges and Supreme Court Justices.

Military courts

Under Article 110(1) of the Constitution and Military Court Act,^[14] the Military Courts (군사법원) are established permanently in both peacetime and wartime as a special court (특별법원) or extraordinary court in each of South Korea's Armed Forces. As Military Courts are not established by the Court Organization Act, these courts are regarded as outside of the conventional judicial hierarchy made of ordinary courts.

Military Courts rule over criminal cases when the accused is a member of the Armed Forces. They are composed of Military Judges (군판사) and constituted by Judge Advocates (군법무관) appointed by Generals in the South Korean Armed Forces. Judge Advocates are military officers qualified as attorneys at law in South Korea yet not Judges in ordinary courts. However, final appellate jurisdiction of criminal cases in the Military Courts still falls under the jurisdiction of the Supreme Court of Korea according to Article 110(2) of the Constitution.

The permanence of the Military Courts, even in peacetime, has created various problems, as South Korea runs a mandatory conscription system. According to some, the permanent Military Court in peacetime was pointed out as a reason for continued suffer of victims due to the system's inclination to protect high-ranking military officers.^[15] Such criticism led to bold reform of military court system in 2021 which abolished the High Military Court (고등군사법원) in peacetime and transferred every appellate jurisdiction of military crime cases to the Seoul High Court.^[16]

Constitutional Court

South Korean Constitutional Court building in Jongno, Seoul

Main article: Constitutional Court of Korea

The Constitutional Court (헌법재판소), seated in Jongno-gu, Seoul and independent from the Supreme Court, is only and highest court on matters of adjudication on constitutionality including judicial review, constitutional review on competence dispute, constitutional complaint, plus deciding cases of impeachment and cases of dissolution of unconstitutional political parties.^[17] Detailed organization and procedure of the Constitutional Court is defined under Constitutional Court Act.^[3]

This system was newly established in the Sixth Republic to reinforce protection on fundamental rights and democracy against potential rise of authoritarianism. The Constitutional Court consists of nine Justices; of these Justices, three are recommended by the Chief Justice of the Supreme Court, three by the National Assembly, and three by the President of South Korea. However, all must be appointed by the President of South Korea. The President of the Constitutional Court, which is the Chief Justice of the Constitutional Court, is appointed among Constitutional Court Justices by the President of South Korea with consent of the National Assembly. The Justices of the Constitutional Court, including the President of Constitutional Court, serve for six-year terms and cannot be older than age 70. Justices except the President of Constitutional Court can renew terms, though most Justices have never tried to renew their term out of concern for the independence of the judiciary.^[3]

Rapporteur Judges

Under Article 19 of the Constitutional Court Act, Rapporteur Judges (헌법연구관) are appointed by the President of the Constitutional Court. They serve as judicial assistants for Justices in the Constitutional Court.^[18] Rapporteur Judges serve for 10-year renewable terms up to age of 60 and are paid the same as Judges in ordinary courts. Rapporteur Judges serve longer than Justices in the Constitutional Court, while Research Judges serve shorter terms than Justices in the Supreme Court; this is designed to ensure continuity of constitutional adjudication in South Korea. As well, some Rapporteur Judge offices are filled by seconded Judges from ordinary courts and seconded government officials including prosecutors. These seconded Judges and prosecutors serve for one to two years as Rapporteur Judges.

Department of Court Administration

Under Article 17 of the Constitutional Court Act, the Department of Court Administration (DCA, 헌법재판소사무처) is established in the Constitutional Court. The head of the department is the Secretary General and is appointed by the President of the Constitutional Court. Like the NCA's role in the Supreme Court, the DCA deals with matters on court administration regarrding the Constitutional Court including fiscal, personnel, and human resource affairs. Yet, while the head of NCA is appointed among the Justices in the Supreme Court, the Secretary General is not appointed among the Justices in the Constitutional Court.

Separation of powers inside Judicial branch

The current Constitution of South Korea distributes power of judicial review inside the judiciary between ordinary courts in Chapter 5 and the Constitutional Court in Chapter 6. Under Article 107(2) in Chapter 5, the ordinary courts, including the Supreme Court, have ultimate jurisdiction over reviewing constitutionality of sub-statutory decrees, regulations, or actions made at the administrative level. Under Article 111(1) in Chapter 6, the Constitutional Court has ultimate jurisdiction over reviewing constitutionality of sub-constitutional statutes made at the legislature level, even without request from the ordinary courts, through Article 68(2) of the Constitutional Court Act. In this structure of power separation, the ordinary courts and the Constitutional Court can contend over each other's rulings. Yet, the Constitution does not clarify who should arbitrate when these courts struggle against each other.

One of the major power struggles between the two highest courts is constitutional complaint over judgment of ordinary courts (재판소원, German: Urteilsverfassungsbeschwerde). As in Austria, a constitutional complaint on an ordinary court's judgment is strictly forbidden according to Article 68(1) of the Constitutional Court Act. However, the Constitutional Court adjudicates that such article of the Act lacks constitutionality. A constitutional complaint over judgment of ordinary court should be exceptionally allowed when the judgment applied an unconstitutional statute, but such an application is already officially nullified before judgment by judicial review of the Constitutional Court.^[19] This kind of judicial review ruling in the Constitutional Court of Korea is called conditionally unconstitutional (한정위헌), which is actually a declaration that a statute under judicial review is currently constitutional, yet the statute must be interpreted in a specific way which is aligned to the constitutional order interpreted by the Constitutional Court. Thus, all ordinary courts, including the Supreme Court of Korea, are bound by such interpretation on statute of the Constitutional Court.

Such a concept is the attempt of the Constitutional Court to adopt the unrivaled status of the German Constitutional Court which can suggest binding interpretation on statutes to the highest ordinary courts of Germany; such a suggestion is known as a constitutional interpretation of statute (German: verfassungskonforme Auslegung). The German Constitutional Court can also adjudicate constitutional complaint over judgment of ordinary court, functioning as actual cassation; such a power has led the court to the top of constitutional system.^[20]

The Supreme Court has opposed the Constitutional Court on both the binding power of the conditionally unconstitutional ruling and the possibility of constitutional complaints over judgment of ordinary court, as they could make the Supreme Court take on a substantially inferior status similar to the system in Germany. However, whether the Constitutional Court can exercise the power of binding interpretation not only on the Constitution but also on statutes (by conditional ruling) or can review the unconstitutionality of ordinary court judgments (by constitutional complaint procedure) still remains unsolved, since the Constitution and even associated statutes have never clarified how this struggle should be settled.^[21]

Issues and criticism

• According to OECD study in 2013 and 2015, though South Korean ordinary courts achieved top-tier status among OECD countries,^[22] the confidence of South Koreans on their judicial system is dropping rapidly from the 2010s.^[23] Specifically, the confidence level on the judicial branch is lower than that of the executive branches of the South Korean government.
• Some suggest that Judges in the lower ordinary courts of South Korea are exposed to the authoritative influences of the Chief Justice and the President of South Korea.^[4] For example, all lower ordinary court Judges are usually transferred to different courts all around South Korea after about two years by the order of Chief Justice per Article 44 of the Court Organization Act.^[9] This strong influence of the Chief Justice on Judges later provoked pressure to reform courts.^[24]

See also

• Constitution of South Korea
• Politics of South Korea
• Government of South Korea
• National Assembly (South Korea)
• Supreme Court of Korea
• Constitutional Court of Korea
• Law of South Korea

Notes and references

1. "CONSTITUTION OF THE REPUBLIC OF KOREA". Korea Legislation Research Institute. Retrieved 2022-02-26.
2. "South Korea, The National Law Review". Retrieved 2022-04-15.
3. "CONSTITUTIONAL COURT ACT". Korea Legislation Research Institute. Retrieved 2022-02-26.
4. "Constitutional history of Republic of Korea, ConstitutionNet". Retrieved 2022-04-15.
5. "West, James M., and Dae-Kyu Yoon. "The Constitutional Court of the Republic of Korea: Transforming the Jurisprudence of the Vortex?" The American Journal of Comparative Law, vol. 40, no. 1, 1992, pp. 76-77". JSTOR 840686. Retrieved 2022-04-05.
6. "천경훈. (2017). 변호사시험이 법학전문대학원의 교육에 미치는 영향. 상사법연구, 36(1), 233-238" (in Korean). doi:10.21188/CLR.36.1.7. Retrieved 2022-05-10.
7. "Constitutional Court decision, 90Hun-Ba25, June 26, 1992" (in Korean). Ministry of Government Legislation, Korean Law Information Center. Retrieved 2022-05-20.
8. "박선영. (2015). 헌법 제27조 제1항의 '재판을 받을 권리'와 심급제에 관한 小考 -EU 국가의 상고심 기능과 역할을 중심으로-. 유럽헌법연구, 18, 225-229" (in Korean). Retrieved 2022-02-23.
9. "COURT ORGANIZATION ACT". Korea Legislation Research Institute. Retrieved 2022-02-23.
10. "KIPO english website". Korean Intellectual Property Office. Retrieved 2022-02-26.
11. "Jurisdiction of Patent court of Korea". Patent Court of Korea. Retrieved 2022-02-26.
12. "Organizational Chart of Supreme Court of Korea". SUPREME COURT OF KOREA. Retrieved 2022-02-28.
13. However, since this reform was too sudden for whole ordinary courts in South Korea, required experience for Judge before year 2029 is 3 to 7 years according to addenda of amended Court Organization Act in year 2011 and 2021. See "Judges qualifications". Supreme Court of Korea. Retrieved 2019-01-01. updated in 2019 and amended addenda of Court Organization Act in 2021-12-21
14. "MILITARY COURT ACT". Korea Legislation Research Institute. Retrieved 2022-02-26.
15. Shin, Hyonhee (2021-06-10). "S.Korea pushes for military law change after soldier's death over sexual abuse". Reuters. Retrieved 2022-05-01.
16. "김정수. (2021). 군 사법제도 개혁과 헌법적 의미에 대한 소고. 연세법학, 38, 71-102" (in Korean). doi:10.33606/YLA.38.3. Retrieved 2022-05-01.
17. "Jurisdiction of Constitutional Court of Korea". Constitutional Court of Korea. Retrieved 2022-02-26.
18. "Organization of Constitutional Court". Constitutional Court of Korea. Retrieved 2022-02-26.
19. "96Hun-Ma172 (Decision date : Dec 24, 1997)". Constitutional Court of Korea. Retrieved 2022-04-07.
20. See Lech Garlicki, Constitutional courts versus supreme courts, International Journal of Constitutional Law, Volume 5, Issue 1, January 2007, Pages 44–68. Available at "International Journal of Constitutional Law". Oxford Academic. Retrieved 2022-04-07.
21. See Jibong Lim, Korean Constitutional Court Standing at the Crossroads: Focusing on Real Cases and Variational Types of Decisions, 24 Loy. L.A. Int'l & Comp. L. Rev. 327 (2002). Available at Lim, Jibong (June 2002). "Loyola of Los Angeles International and Comparative Law Review". Loyola Law School. p. 327. Retrieved 2022-02-26.
22. "Judicial performance and its determinants: a cross-country perspective". OECD. Retrieved 2022-02-26.
23. "Trust in government in Korea: A puzzle". OECD. Retrieved 2022-02-26.
24. "An influence-peddling scandal ensnares South Korea's top court". The Economist. 2019-01-24. Retrieved 2022-04-07.

External links

• Media related to Judiciary of South Korea at Wikimedia Commons
• Supreme Court of Korea
• Military Court of Korea Archived 2023-01-04 at the Wayback Machine
• Constitutional Court of Korea