The Constitutional Court has begun preparations to reduce side effects of the so-called "four-tier appeal system" ahead of implementing the new constitutional complaint against court judgments. A constitutional complaint against a judgment is a system in which the Constitutional Court reviews a final court ruling when it is deemed to have violated constitutional fundamental rights. The court expects 10,000 to 15,000 new filings annually and is setting up a dedicated screening unit and an electronic filing system, while also moving to revise related rules and bolster staffing.
Son In-hyeok, Secretary-General of the Constitutional Court, said at a press briefing held at the briefing room of the court's annex in Jongno-gu, Seoul, on the 10th, "Once constitutional complaints against judgments become possible, it can be assessed as a meaningful and substantive step forward in guaranteeing the people's fundamental rights," adding, "We will do our best to get the system firmly in place as early as possible." He continued, "We are preparing to prevent side effects of the so-called 'four-tier appeal system'" and "We will work to ensure efficient cooperation between the courts and the Constitutional Court."
Minister Son said, "Although the 1987 amended Constitution established the Constitutional Court to guarantee the people's fundamental rights, the ban on constitutional complaints against judgments prevented the sovereign's will enshrined in the Constitution from being properly realized," adding, "Going forward, exercises of public authority by the courts will also be subject to constitutional control, and a more tightly woven system for protecting fundamental rights will be established." The court explained that, in this regard, it is reviewing foreign precedents and practical experience centered on the Constitutional Court Research Institute, and is also conducting discussions among experts, panels, and the research department.
The constitutional complaint against a judgment takes effect as soon as the amendment to the Constitutional Court Act is promulgated and published in the official gazette. A petition can be filed within 30 days from the date the judgment becomes final. Even for a final judgment handed down before the law takes effect, a petition may be filed if the requirements are met after implementation. The targets are final court judgments, in principle covering the first, second, and third instances. However, if an appeal or further appeal is still pending and a petition is filed directly with the Constitutional Court, it will be difficult to accept under the "principle of subsidiarity." This means one can seek a ruling from the Constitutional Court only after exhausting the ordinary court procedures. For this reason, in practice, final judgments of the Supreme Court are likely to be the focus.
If the Constitutional Court upholds a constitutional complaint and quashes the original judgment, the effect of the ruling retroactively disappears, and the case returns to the court of that instance for a new hearing. However, filing a constitutional complaint does not automatically stay the effect of the judgment. In criminal cases as well, execution of the sentence generally continues.
The court expects a considerable number of cases to be screened out at an early stage. At the justices' conference on the 3rd, it was decided to use the existing "Hun-Ma" docket code for constitutional complaints, and a dedicated dispatched screening unit was formed to review incoming cases first. Eight Constitutional Court researchers with more than 15 years of legal experience have been assigned. Last week, an administrative preparation team of a little over 10 members was also launched.
The electronic filing system is already in place. The court has added a function to accept constitutional complaint cases at the Electronic Constitutional Adjudication Center and plans to post a detailed guide on how to file and what to include on its website. Work is also underway to revise related rules, including the Constitutional Court enforcement rules and internal allocation guidelines.
Ji Seong-su, deputy secretary-general of the court, said, "To process cases in a timely manner, it is very important to expand adjudication staff among constitutional researchers and the secretariat," adding that discussions are underway with budget authorities to increase personnel and secure reserve funds. Immediately after the law takes effect, the court plans to adjust departments and temporarily assign support staff to relevant units.
A cooperation system with the courts and the prosecution will also be established. Some in the legal community voiced concern that, because the court does not have the judiciary's electronic records system directly in place, large volumes of paper records might have to be transferred. But the court's position is that there are currently no major problems with sending and receiving records. Deputy Secretary-General Ji explained that, under the Constitutional Court Act, the court can request the forwarding of records or the submission of materials; it can also use methods such as requesting submission of copies of trial records or certified copies, and electronic submission through the Electronic Constitutional Adjudication Center. The court will continue consultations with the prosecution, which keeps records of criminal cases.
If the law introducing constitutional complaints against judgments, approved at the Cabinet meeting on the 5th, takes effect immediately upon promulgation this week, the Constitutional Court will be able to quash even Supreme Court-finalized rulings if they are deemed to have violated fundamental rights.