Attorneys Ko Il-gwang and Song Gil-dae of Law Firm Barun said this at a seminar titled "Practical guidance on the substance and procedure of the petition for review of judgment" held at the Conference Hall of the Textile Center Building in Gangnam-gu, Seoul, on the 24th. They said thorough preparation is needed because the success or failure of a petition for review of judgment is decided at the preliminary screening stage.
Attorney Park Sung-ho, who spoke at the seminar, called the preliminary screening by which the Constitutional Court chooses cases to review as petitions for review of judgment "the substantive gateway to the petition for review of judgment." In fact, on this day the Constitutional Court, in the first preliminary screening since the system took effect, dismissed 26 cases in succession. Not a single case was referred to the full bench.
Under Article 72 of the Constitutional Court Act, the Constitutional Court first conducts a preliminary screening of a petition for review of judgment through a designated panel of three justices. It then issues a dismissal if any ground applies, such as when there is a remedy under another law that has not been pursued, when the filing period has expired, or when the petition was filed without appointing a representative. Park explained, "The success or failure of a petition for review of judgment is largely determined at the preliminary screening stage."
The short filing period is also a variable. A petition for review of judgment must be filed within 30 days from the date the judgment becomes final. In civil cases, finality is when the appeal period lapses after proper service of the original copy of the judgment; in criminal cases, it is when the appeal period lapses after the pronouncement of the judgment. Whereas the filing period for a constitutional complaint is 90 days from the date one becomes aware of the grounds for the infringement of a fundamental right, and within one year from the date of the infringement, the petition for review of judgment shortens this to 30 days.
Park explained, "Unless arguments relating to the infringement of fundamental rights are established in advance at the trial stage, it is realistically difficult to draft a thorough petition within 30 days." A constitutional complaint petition must include the gist of the judgment sought to be vacated, the background of the filing, whether the admissibility requirements are met, and the specific grounds for the infringement of fundamental rights. Attorneys said that if one thinks of a petition for review of judgment only after the judgment becomes final, it is already too late.
Attorneys Jeon Gi-cheol and Lee Won-ho explained that to pass preliminary screening, a petition for review of judgment must precisely construct the substantive grounds for relief. Mere errors in statutory interpretation are not enough; the likelihood of Constitutional Court intervention increases only when a court fundamentally misunderstands the meaning of a fundamental right or makes an arbitrary judgment. They also said that in cases where procedural fundamental rights such as the right to claim at trial are at issue, a strategy of framing the petition on the ground of "a trial that did not follow due process" can be effective.
What happens after clearing preliminary screening is also critical. For a petition for review of judgment to be granted on the merits, it must meet the quorum of six justices. If the petition is granted, the judgment is vacated and the court must retry the case in accordance with the Constitutional Court's decision.
However, until the Constitutional Court issues a decision on the merits of a petition for review of judgment, enforcement of the final judgment continues. That is why an injunction is important, but the grant rate for injunction applications in constitutional complaint cases over the Constitutional Court's 37 years is said to be only 0.1%. Attorney Ko Il-gwang said, "For an injunction to be granted in a petition for review of judgment, the unconstitutionality of the original judgment must be clear, the likelihood of a grant on the merits must be high, and there must be urgent harm warranting an immediate halt to enforcement."