[News Inside] Eyes on the Constitutional Court Injunction Over 'Korea Acting Justice Nominee'

Three-Member Designated Panel Refers Cases to Nine-Member Full Bench...
Preliminary Review Completed
Six Constitutional Complaints and Injunction Applications to Be Heard by Full Bench
Injunction Decision Expected Before Retirement of Moon Hyung-bae and Lee Mi-seon on the 18th
If Injunction Is Granted, Effect of Acting President Han's Justice Nominations Will Be Suspended

On the 14th, the Constitutional Court will begin full hearings by the full bench on six constitutional complaints and injunction cases filed in relation to Acting President Han Deok-su's nomination of two constitutional court justices for the president's quota. Since the 9th, related constitutional complaints and injunction applications have been filed one after another, and on the 10th, the Constitutional Court designated Justice Ma Eun-hyuk as the presiding judge. On the 11th, the three-member "designated panel," including Justice Ma, completed the hearings and referred the cases to the nine-member "full bench," accelerating the proceedings. This means that within six days after Acting President Han's nomination of justices, the procedures of "case reception → presiding judge designation → designated panel hearing → referral to full bench" were all completed.

Tension is mounting at the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the 3rd, one day before the Constitutional Court's ruling on the impeachment trial of President Yoon Seok-yeol. 2025.04.03 Photo by Joint Press Corps

The immediate focus is on the outcome of the injunction application concerning the validity of Acting President Han's nomination of Justices Lee Wan-gyu and Ham Sang-hoon. The injunction case, which corresponds to a preliminary ruling on the main constitutional complaint, is expected by legal circles to be decided before October 18, prior to the retirement of Acting Chief Justice Moon Hyung-bae and Justice Lee Mi-seon. The injunction decision, which precedes the constitutional complaint, is granted when at least five of the nine justices agree. Whether the injunction is granted is likely to be used as an important basis for the main judgment, making it effectively a preliminary examination, according to legal experts. Professor Kim Seon-taek of Korea University Law School said, "Among the various criteria for granting an injunction, the most important is whether there is even a slight possibility of the main case being accepted," adding, "If there is a 100% clear possibility of dismissal, there is no need for discussion."

For the injunction to be granted, basic requirements such as standing, urgency, and balancing of interests must be met. If these requirements are not met, the Constitutional Court will dismiss the case. The granting of an injunction to suspend effectiveness is based on judgments regarding ① whether standing is recognized to contest the main trial, ② whether there is a need to prevent irreparable harm, and ③ whether there is an urgent necessity to suspend the effect. Last October, the injunction application to suspend the effect of the Constitutional Court Act filed by Lee Jin-sook, Chairperson of the Korea Communications Commission, was also granted based on these criteria. In this case, since the designated panel handled the basic requirements and referred the case to the full bench, it is believed that some requirements have been passed. However, if opinions differ on requirements such as standing in the full bench, dismissal is also possible.

Those who expect the injunction to be granted argue that it is illegal for Acting President Han, who was not elected by vote, to exercise the president's exclusive right to nominate justices, and that constitutional trials conducted by justices appointed through illegal procedures are unfair. Professor Han Sang-hee of Konkuk University Law School said, "The constitution is a legal norm decided by considering interpretative theories and contemporary academic views," adding, "Since current constitutional scholars basically view Acting President Han's candidate appointments as improper, the injunction is likely to be granted." Professor Jeong Tae-ho of Kyung Hee University Law School said, "The key issue is whether the Constitutional Court will consider that the acting president can exercise the president's personnel rights," adding, "When balancing interests, the disadvantage of dismissing the injunction and later concluding in the main case that (Acting President Han's candidate nomination) authority does not exist is greater than the opposite situation."

Considering the Constitutional Court's processing speed, the injunction decision is expected before the retirement of Justices Moon Hyung-bae and Lee Mi-seon on the 18th, making it highly likely to be announced this week. In the case of Lee Jin-sook, Chairperson of the Korea Communications Commission, she filed an injunction on October 10 last year, claiming the right to a speedy trial amid a judicial vacancy situation where the trial could not continue after the retirement of three justices, and the decision was made on the 14th, taking four days including the weekend.