Constitutional Court Grants Injunction in Favor of Broadcasting Commissioner Lee Jin-sook... Suspends Effect of 7-Member Quorum Clause

Vacancy Due to Expiration of Constitutional Court Justice's Term
Suspension of Article 23(1) of the Constitutional Court Act Until Constitutional Complaint Ruling

Lee Jin-sook, Chairperson of the Korea Communications Commission, filed a provisional injunction request to suspend the effect of the Constitutional Court Act provision that sets the quorum for constitutional court rulings at seven members, which has been accepted.

While the illegality of the provision must be judged through the main trial, the reason is that the disadvantage that would occur if the provisional injunction were dismissed and the unconstitutionality of the provision was later confirmed and the petition was accepted in the final decision is much greater than the disadvantage that would occur if the provisional injunction were accepted and the petition was dismissed.

Constitutional Court Grand Bench.
[Photo by Yonhap News]

On the 14th, the Constitutional Court accepted Chairperson Lee's provisional injunction request to suspend the effect of Article 23, Paragraph 1 of the Constitutional Court Act.

Article 23 (Quorum for Rulings) Paragraph 1 of the Constitutional Court Act, whose effect was suspended by the court that day, is a provision concerning the quorum (the minimum number of justices required to conduct a hearing) stating that "the panel shall hear the case with the attendance of seven or more justices."

Through its order, the Constitutional Court stated, "The effect of the part of Article 23, Paragraph 1 of the Constitutional Court Act that applies when a justice retires due to the expiration of their term, resulting in a vacancy, is suspended until the final decision of the constitutional complaint case 2024HunMa900."

This means that until the conclusion of the constitutional complaint case filed by Chairperson Lee challenging the unconstitutionality of the provision, the provision will not apply in cases where there is a vacancy due to the expiration of a justice's term.

The Constitutional Court explained the reason for accepting the provisional injunction request, saying, "Whether Article 23, Paragraph 1 of the Constitutional Court Act infringes on the applicant's right to request a trial needs to be judged through the main trial, and since three justices will retire on October 17, 2024, it is currently certain that a basic rights infringement will occur under the provision."

Therefore, the court stated, "This provisional injunction request cannot be regarded as clearly inappropriate or groundless in the main trial."

The court pointed out, "An applicant who has been impeached by the National Assembly has their authority suspended until the Constitutional Court's impeachment trial. If the case cannot even be heard due to Article 23, Paragraph 1 of the Constitutional Court Act, this constitutes an excessive restriction on the applicant's right to a prompt trial."

It added, "Ultimately, the applicant faces the risk of suffering irreparable serious damage due to Article 23, Paragraph 1 of the Constitutional Court Act, and since the retirement of three justices is imminent, there is an urgent need to prevent such damage."

The Constitutional Court compared the disadvantages that would arise if the provisional injunction were dismissed and the main petition accepted, and if the provisional injunction were accepted and the main petition dismissed, concluding that the former is much greater than the latter.

The court stated, "Even if the provisional injunction is accepted, it concerns the quorum for hearings, not the quorum for decisions, so it is possible to wait for the appointment of the vacant justice to make a decision. However, to make a faster decision, it is necessary to mature the case by organizing issues and conducting evidence investigations before the successor justice is appointed."

It continued, "If the provisional injunction request is dismissed, even if the petition is accepted in the final decision of the main trial, the applicant's basic rights, such as the right to a prompt trial, will have already been infringed because these procedures could not be conducted in time, making recovery very difficult."

The Constitutional Court also pointed out, "Although retirement due to term expiration is naturally expected under a fixed-term system, the repeated occurrence of vacancies among justices is a serious problem," and criticized, "There is no institutional safeguard such as a proxy system for the quorum of seven justices for hearings."

It concluded, "Ultimately, the disadvantage that would occur if the provisional injunction were dismissed and the petition accepted is greater than the disadvantage that would occur if the provisional injunction were accepted and the petition dismissed."

However, the Constitutional Court limited the scope of the suspension of the provision's effect to cases of vacancies due to the expiration of justices' terms.

The court stated, "In this case, the issue concerns vacancies caused by justices retiring due to term expiration, and since this is also what the applicant is substantively disputing, it is reasonable to suspend the effect only for the part of Article 23, Paragraph 1 of the Constitutional Court Act that applies to such vacancies."

Chairperson Lee was appointed as Chairperson of the Korea Communications Commission on July 31 but was impeached on August 5. Among the nine justices of the Constitutional Court, Chief Justice Lee Jong-seok and Justices Lee Young-jin and Kim Ki-young will retire on the 17th.

The National Assembly must elect their successors, but no successors have been appointed yet. As a result, from the 18th, only six justices will remain, making it impossible to hear any cases under Article 23, Paragraph 1 of the Constitutional Court Act.

Accordingly, Chairperson Lee filed a constitutional complaint challenging the provision as infringing on her right to request a trial and simultaneously requested a provisional injunction to suspend the provision's effect until the final decision of the main case on the 10th.

With the Constitutional Court accepting the provisional injunction request, the paralysis of the Constitutional Court has been temporarily averted.