'Effect Suspension After Nomination of Acting Korean Judge' Scenario [News Inside]

Constitutional Court Grants Injunction Suspending Effect of Han's Nomination of Justice Candidates
Uncertainty Over Acting President's Authority to Nominate Justices
Suspension Remains in Effect Until Main Constitutional Complaint Ruling
High Likelihood That Next President Will Decide on Successors

The Constitutional Court has granted a provisional injunction suspending the effect of Acting President and Prime Minister Han Deok-su's nomination of Lee Wan-gyu, Director of the Legislation Office, and Ham Sang-hoon, Chief Judge of the Seoul High Court, as candidates for Constitutional Court justices, drawing attention to the outcome and timing of the main constitutional complaint ruling.

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. April 3, 2025 Photo by Joint Press Corps

While the Constitutional Court put a brake on Acting President Han's actions, which sparked controversy over 'exceeding authority,' it did not rule on the core issue of whether an acting president can nominate a Constitutional Court justice who is normally appointed by the president. Critics say the court sidestepped the key issue, leaving uncertainty. Depending on the ruling and timing of the constitutional complaint, various scenarios are possible, but with only 45 days left until the June 3 presidential election, it is highly likely that the successors to Justices Moon Hyung-bae and Lee Mi-seon will be decided by the next president.

Earlier, on the afternoon of the 16th, the Constitutional Court unanimously granted a provisional injunction requested by lawyer Kim Jeong-hwan of Dodam Law Firm to suspend the effect of Acting President Han's nomination of candidates for the Constitutional Court justices who will replace Moon Hyung-bae and Lee Mi-seon, who are retiring on the 18th. The court swiftly granted the injunction just eight days after Han nominated Lee Wan-gyu and Ham Sang-hoon. As a result, the nomination and appointment procedures for the justice candidates by Acting President Han have been halted.

The suspension period of the injunction lasts until the ruling on the main constitutional complaint. The Constitutional Court stated, "There is a risk that the applicant may suffer serious and irreparable harm, and regardless of whether the National Assembly conducts a confirmation hearing, the candidate can be appointed as a justice, so there is an urgent need to prevent harm through the injunction." The court judged that the disadvantages caused by appointing the justices outweigh those in the opposite case.

However, while granting the injunction, the Constitutional Court did not separately address the acting president's authority to nominate and appoint Constitutional Court justices who are normally appointed by the president. The court stated in its decision that it "cannot definitively determine (the unconstitutionality)" of Acting President Han's nomination act. This has been criticized as hiding behind formal legal reasoning by deferring judgment on whether the case meets the requirements for adjudication and on the controversy over Han's 'exceeding authority.'

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Ultimately, the key variables going forward are whether the Constitutional Court will accept the constitutional complaint and the timing of its ruling. The court may hold oral arguments if necessary, but usually accepts complaints with the approval of six or more justices through written review. According to the Confirmation Hearing Act, once the president nominates a candidate, the National Assembly must complete the confirmation hearing within 20 days, with a possible extension of up to 10 days.

There are four main scenarios. If the Constitutional Court rules the constitutional complaint as unconstitutional, the nominations of Lee Wan-gyu, Director of the Legislation Office, and Ham Sang-hoon, Chief Judge of the Seoul High Court, by Acting President Han will be null and void, and the appointment rights for these two justices will naturally pass to the next president. If the next president is from the opposition party, they are expected to nominate new candidates and appoint two new justices after the National Assembly's confirmation hearing process. The Democratic Party has opposed Han's nominations and welcomed the court's injunction.

If the constitutional complaint is dismissed or rejected and Han's nominations are recognized as valid, the situation will vary depending on the timing of the ruling. Although it took eight days from the nomination to the injunction decision, since the request for a confirmation hearing has not been submitted or received, the National Assembly has up to 30 days remaining under the Confirmation Hearing Act.

If the ruling comes close to the June 3 presidential election, the composition of the Constitutional Court justices could change depending on who becomes president. If a president from the People Power Party, who supports Han's nominations, is elected, they may proceed with the appointments. However, if an opposition party president is elected, they may go through a new nomination and appointment process regardless of Han's nominations.

If the dismissal or rejection ruling is issued around late April to early May, Han could wait for the remaining period to submit the confirmation hearing report under the Confirmation Hearing Act and appoint the two candidates he nominated before the presidential election as originally planned. This is because if the National Assembly does not adopt and send the confirmation hearing report, appointments can still proceed.

Meanwhile, starting from the 19th, the Constitutional Court will operate with a '7-member panel.' This is the first time in eight years and the third time in history since March 2017, when then Acting Chief Justice Lee Jeong-mi retired and the court operated with seven justices. According to Article 23 of the Constitutional Court Act, the court can conduct hearings and rulings with seven justices. However, if the Democratic Party passes an amendment to the Constitutional Court Act in the National Assembly plenary session allowing the automatic extension of terms for justices until successors are appointed and applying this retroactively, the situation could change again.