[Exclusive] 'No Objection Allowed by Complainant' on Constitutional Judgment... Constitutional Court Refers to Full Bench

7 Constitutional Complaints Under 'Merits Review'... 1 Preliminary Review in Progress
Unconstitutionality Decision Requires '6 Judges' Consent'... Judge Replacement as a Variable

The Constitutional Court has been confirmed to be actively reviewing the constitutionality of the provision in the amended Criminal Procedure Act, known as the "complete removal of prosecution investigation rights" (검수완박, Geomsu Wanbak), which prohibits complainants from filing objections. Last year, the Democratic Party of Korea amended Article 245-7, Paragraph 1 of the Criminal Procedure Act (Objection by Complainants, etc.) to prevent complainants from raising objections to police decisions not to prosecute.

On the 23rd of last month, the day the Constitutional Court delivered its ruling on the authority dispute regarding the complete removal of the prosecution's investigative powers (Geomsu Wanbak) bill, Yoon Nam-seok, Chief Justice of the Constitutional Court, was seated together with the constitutional justices at the Constitutional Court in Jongno-gu, Seoul. Photo by Kang Jin-hyung aymsdream@

According to a comprehensive report by Asia Economy on the 5th, the Constitutional Court has so far received 12 constitutional complaint cases regarding this provision, dismissed 4 cases, and referred 7 cases to the full bench for review. One remaining case is undergoing a preliminary examination process.

A constitutional complaint is a system through which citizens whose fundamental rights have been violated by the exercise or non-exercise of public authority request the Constitutional Court to restore those rights.

When a constitutional complaint case is filed, a designated panel of three justices is randomly assigned to conduct a preliminary review. If the panel determines that the petition does not meet the requirements, it can dismiss the complaint by unanimous decision of the panel. If not dismissed, the case is referred to the full bench of nine justices for review.

The Constitutional Court makes a final decision through written review or oral arguments if necessary. If the petition is deemed inappropriate, it is dismissed; if the petition lacks merit, it is rejected or upheld as constitutional; if the petition has merit, it is accepted or declared unconstitutional.

Previously, in a jurisdictional dispute related to the Geomsu Wanbak law last month, Justices Yoo Nam-seok, Lee Seok-tae, Kim Ki-young, Moon Hyung-bae, and Lee Mi-seon dismissed the case without ruling on the substantive issue of the provision prohibiting complainants from filing objections. They focused on the legality of the lawsuit rather than judging the law itself, which does not mean they found the provision constitutional.

Justices Lee Sun-ae, Lee Eun-ae, Lee Jong-seok, and Lee Young-jin, who dissented, viewed the objection prohibition provision as causing a fundamental infringement on the prosecutor's investigation and prosecution rights. They stated, "In crime areas involving important national and social legal interests, or cases involving institutional complaints or socially vulnerable victims, the effectiveness of investigations is greatly diminished despite the need to secure investigative effectiveness," effectively expressing an opinion of unconstitutionality.

In this situation, changes in the composition of the Constitutional Court due to justice replacements are expected to be a significant variable. Since a ruling of unconstitutionality requires the agreement of six out of nine justices, the justices' inclinations greatly influence the decision.

Recently, Justice Kim Hyung-doo, who joined as a successor to Justice Lee Sun-ae, and Justice Jeong Jeong-mi, who will be inaugurated on the 17th, are known to have moderate conservative tendencies. The successor to Constitutional Court Chief Justice Yoo Nam-seok, who will retire in November this year, is also likely to be a conservative appointee, suggesting a significant change in the composition of the Constitutional Court.