The Supreme Court on the 18th reaffirmed its position that the so-called move to introduce a "trial petition," which would allow constitutional complaints against court rulings, "does not conform to the current Constitution and raises concerns about harm to the public."
Earlier, Chief Justice Jo Hee-de said on the way to work on the 12th that introducing a trial petition "is an issue whose result would cause enormous harm to the public." Observers said it was highly unusual for the Supreme Court to speak out on a pending matter. The Constitutional Court responded the next day with a release that directly refuted the Supreme Court's claim of "unconstitutionality." In response, the Supreme Court on this day issued a Q&A-style reference document and rebutted point by point.
In the document, the Supreme Court presented its views in four branches: ▲ whether it is permitted under the Constitution ▲ harm to the public ▲ the Constitutional Court's capacity to handle cases ▲ the need for public debate and deliberation.
◇ "The current Constitution has not recognized a trial petition since the design stage"
The Constitutional Court's position is that even final and binding rulings can, as exercises of public power, result in violations of basic rights, and that a procedure is needed to remedy such violations. It sees the institutional channel to contest basic-rights violations arising from trials as effectively blocked, making the introduction of a trial petition necessary. Citing Article 111 of the Constitution, which provides for "constitutional complaint adjudication as prescribed by law," it also suggested that permitting a trial petition falls within the legislature's discretion. The Constitutional Court emphasizes a framework in which not only legislative and administrative acts but also judicial acts can be examined from the perspective of basic rights.
In response, the Supreme Court said the Constitution was designed, from the time the Constitutional Court was established in 1987, not to allow trial petitions. It cited as grounds that the Constitution vests judicial power in the courts while dividing authority so that the Constitutional Court handles only enumerated matters such as constitutional review of statutes and impeachment trials.
The Supreme Court explained that "the Constitution does not contemplate a structure in which one institution reexamines another institution's rulings," and it said it was also difficult to agree with the claim that "the Constitutional Court is the sole, final interpreter of the Constitution." The point is that the Supreme Court and the Constitutional Court are final interpreters at different stages.
Differences in views over the German model were also highlighted. The Supreme Court said that, unlike Germany—which the Constitutional Court cites as a model for the trial petition—Korea's Constitution sets the courts and the Constitutional Court as independent institutions and constitutional justices are not "judges," meaning "the constitutional structure is fundamentally different." The argument is that it is difficult to apply logic premised on the German system as is.
◇ "Protect basic rights through a trial petition? It could instead cause harm"
The Constitutional Court's position is that a trial petition is not a procedure like an appeal to reexamine facts or the entirety of legal relations, but a system that limits review to whether a trial caused a violation of basic rights. Therefore, it believes calling it a "fourth instance" confuses the object and scope of review. It also argues that preliminary screening by a designated panel can weed out improper petitions and reduce abuse. The Constitutional Court explains that if the scope is limited to "basic-rights review," it is functionally distinguishable from ordinary appeals.
By contrast, the Supreme Court also emphasized that introducing a trial petition could instead run counter to protecting basic rights. Because constitutional text is abstract and interpretive discretion can expand, it argued that basic-rights protection is better served by reasonably dispersing authority rather than concentrating it in one place. As for the claim that the judiciary should be controlled just as the legislature and administration are, the Supreme Court drew a line, saying that control of judicial power must take into account both the constitutional allocation of authority and the nature of the trial system.
Under the "harm to the public" item, the controversy over a "fourth instance" clashed head-on. The Supreme Court pointed out that because the grounds for a trial petition and constitutional provisions are abstract, losing parties would be more likely to claim a basic-rights violation and head to the Constitutional Court, and that if the Constitutional Court were to decide the rightness or wrongness of Supreme Court rulings and "vacate judgments," it would in effect be no different from placing another level of review above the court of final appeal.
The Supreme Court also expressed concern that if a trial petition is introduced, the public could fall into the "false hope" and "litigation hell" of a "fourth instance." If vacatur rulings, follow-up judgments, and renewed trial petitions are repeated, the number of trials could rise and litigation could be prolonged.
◇ "The Constitutional Court is already slow—can it handle 15,000 trial petitions?"
Questions were also raised about the Constitutional Court's capacity to process cases. The Constitutional Court believes concerns about a case surge can be mitigated by setting strict requirements and swiftly dismissing at an early stage, and it emphasizes that the remedy of basic rights is not just a matter of speed or efficiency. The idea is that if a "threshold" is designed so that filed cases do not proceed directly to a hearing on the merits, the burden can be managed.
The Supreme Court said that with the Constitutional Court handling about 2,500 cases a year with nine justices and some 70 constitutional law clerks, and an average processing time of more than two years, introducing a trial petition would greatly increase cases and delay constitutional adjudication. The Supreme Court also presented an estimate that "even if a trial petition were allowed only for Supreme Court rulings, the expected number of cases would exceed 15,000."
In conclusion, the Supreme Court stressed that a trial petition "amounts to a fundamental change in the judicial system to the extent that it would require a constitutional amendment," and that public debate and deliberation are needed. The point is that it is difficult to easily change the Constitution's basic philosophy and design through simple statutory amendments, and that if institutional changes are pursued, public consent and consensus must come first. The Supreme Court said public harm can be minimized only after sufficient review and consultation through a discussion body that includes the National Assembly, the courts, the Constitutional Court, and experts in litigation procedures.