The Constitutional Court asked the Supreme Court to submit its views in a case sent to a full review for the first time since the introduction of the retrial petition. Because this case involves the Constitutional Court reexamining a finalized Supreme Court ruling, the legal community is focused on how the Supreme Court will respond.
According to legal sources on the 3rd, the Constitutional Court on Apr. 29 sent a notice of referral for adjudication to the Supreme Court in a constitutional complaint case filed by Green Cross against the Supreme Court. The notice instructed, in effect, "Submit a reply and evidence or reference materials within 30 days from the date of receipt."
The case is a retrial petition seeking to overturn a Supreme Court ruling that finalized Green Cross's loss in an administrative suit related to bid rigging on vaccines. A retrial petition is a procedure that asks the Constitutional Court to judge whether a court ruling violates the Constitution. Because it places court rulings within the Constitutional Court's purview, it has long sparked debate tied to the division of powers between the Supreme Court and the Constitutional Court.
The Constitutional Court also notified the Chairperson of the Korea Fair Trade Commission, the counterparty to the finalized ruling Green Cross seeks to void, and the Minister of Justice, an interested party, of the referral. The notice reached the Korea Fair Trade Commission (FTC) and the Ministry of Justice, but it was reported that it has not yet reached the Supreme Court.
The key issue is the Supreme Court's "dismissal without a hearing." In appeals other than criminal cases, if the court finds no significant misapprehension of law in the lower judgment, it may dismiss the appeal without a full review. Because reasons are often not provided in detail, it has drawn criticism inside and outside the legal community as a "10-second trial."
Green Cross argues that the criminal trial and the administrative suit reached different conclusions on the same vaccine bid-rigging matter. The Korea Disease Control and Prevention Agency issued three procurement bids for Gardasil vaccines from Apr. 2017 to Jan. 2019, and the Korea Fair Trade Commission (FTC) imposed a corrective order and a 2.035 billion won penalty surcharge on Green Cross for collusion.
In the subsequent criminal case, the Supreme Court dismissed the prosecution's appeal last December, finalizing an acquittal. In contrast, in the administrative suit contesting the penalty surcharge, the Supreme Court in February of this year finalized Green Cross's loss by dismissal without a hearing. Green Cross viewed it as problematic that the Supreme Court finalized a loss in the administrative case without substantive review and filed a constitutional complaint.
On Apr. 28, after a preliminary review by a designated panel, the Constitutional Court referred the case to the full bench. This is the first time a retrial petition has passed preliminary screening and become the subject of a merits judgment.
Unusual procedural scenes are also expected to follow. It has not been decided whether the Supreme Court, as the respondent in the Constitutional Court case, will submit its views and, if so, who will draft them. A Supreme Court official said nothing has been decided yet about whether the division that issued the ruling would draft the reply, how materials would be submitted, or whether there is an intention to submit them at all.
For now, the Constitutional Court intends to proceed under the usual procedures for constitutional complaints. It believes there is no major problem for the current stage of review even without separately receiving the records from the Supreme Court. A Constitutional Court official explained to the effect that, because the party has submitted the records in a represented case, there is no present need to transmit the records.
The Supreme Court is not required to submit a reply. However, if it does not provide its views, the Supreme Court's position may not be adequately reflected during the Constitutional Court's review. For this reason, the Supreme Court is likely to begin internal deliberations.
Legal circles say this case could affect the overall operation of the dismissal-without-hearing system. According to the Supreme Court, excluding frivolous cases last year, 71% of civil, family, administrative, and patent appeals were finalized by dismissal without a hearing. The ratio is higher for administrative cases. Since 2021, it has stayed in the mid-70% range each year, and it was 76.8% last year.
If the Constitutional Court sets limits on dismissals without a hearing in this case, it could affect how the Supreme Court runs its appeals. Conversely, there is a counterargument that overly restricting the system would make it harder to filter out unreasonable appeals. A clash over the scope of the Constitutional Court's authority to review finalized Supreme Court rulings also appears unavoidable.