[Law & Story]More Harm Than Good in Introducing "Constitutional Complaints Against Judgments"

Endless Litigation and Waste of Social Costs
Germany: Constitutional Complaints Upheld Against Federal Court Judgments in the 0% Range
A Decision That Shakes the Foundations of the Judicial System

Choi Seokjin, Law & Biz Specialist

For over a century before the introduction of the Video Assistant Referee (VAR) system to football matches in 2016, decisions regarding goals or fouls were entirely at the discretion of the referee.

The reason why referee decisions and match results could never be overturned retroactively, even in the case of clear mistakes during major tournaments such as the World Cup, was due to a consensus that “the referee’s decision is final.” Without this, it was feared that the authority of the referee would be undermined, inevitably leading to chaos in every game.

The same principle applies to trials. While a three-tiered court system is guaranteed to correct errors in lower courts, it was a deliberate decision by the people, as constitutional founders, and the legislature to establish that no one can challenge the final and conclusive verdict of the Supreme Court-ensuring legal stability. In this respect, the concept of a constitutional complaint against court judgments (“jaepansoweon”) has several fundamental issues.

First, it does not align with Korea’s constitutional system and regulations, raising significant concerns of unconstitutionality. Unlike Germany’s Federal Constitutional Court-which, under the German constitution, is part of the judiciary along with the regular courts-Korea’s Constitution clearly distinguishes between the courts (Chapter 5) and the Constitutional Court (Chapter 6), declaring both as separate and independent constitutional bodies.

Furthermore, Article 107 of the Constitution assigns the review of the constitutionality of “laws” to the Constitutional Court and the review of the constitutionality of “orders, rules, and administrative dispositions” to the Supreme Court, and does not provide for any instance in which the Constitutional Court can re-examine the Supreme Court's determinations on constitutionality. This means that the Constitution does not anticipate the Constitutional Court re-examining court judgments. Therefore, amending the law to allow constitutional complaints against court judgments without first amending the Constitution itself would be unconstitutional.

The fundamental reason why the legislators who established the Constitutional Court Act originally excluded court judgments from the scope of constitutional complaints was that, unlike the government or the National Assembly, the courts are fundamentally tasked with protecting basic rights. Allowing the Constitutional Court to judge the constitutionality of finalized court decisions may appear at first glance to enhance the protection of basic rights, but how many court judgments that violate the Constitution or infringe on basic rights actually occur in a year? The fact that the acceptance rate for constitutional complaints against Supreme Court rulings in Germany is in the zero percent range suggests that, in practice, the system provides little real benefit.

Most importantly, if another constitutional body is established “above” the Supreme Court to serve as a “court above the court,” functioning as a fourth instance, a significant number of convicted defendants or losing parties would bring their cases again to the Constitutional Court. Even after years of litigation, parties would have to await the Constitutional Court’s decision. If the Constitutional Court cancels a court ruling, the case would return to the courts, resulting in endless litigation cycles, delayed dispute resolution, and unavoidable national waste.

Moreover, because appointing a lawyer is mandatory to file a constitutional complaint under the Constitutional Court Act, the system could become meaningless for small businesses or ordinary citizens due to the cost of litigation. On the other hand, well-funded large corporations or privileged groups, even knowing the outcome is unlikely to change, could use constitutional complaints as a means to delay enforcement and pressure their opponents. This is why there is a cynical forecast that, “If constitutional complaints against court judgments are introduced, the only ones who will benefit are criminals and lawyers.”

The argument that constitutional complaints against court judgments are merely constitutional reviews of matters and not a “fourth instance” is little more than wordplay that focuses solely on appearances. It is impossible to assess whether a judgment is unconstitutional, unlawful, or violates basic rights without reviewing and deciding on the specific factual findings and legal interpretations made by the courts. If the Constitutional Court can overturn the Supreme Court’s final interpretation of the law, what else can that be but a fourth instance?

Furthermore, the Constitutional Court, often described as a “political judicial body,” is markedly less independent and neutral from politics compared to the Supreme Court. There have been numerous decisions that revealed the justices’ political leanings, with completely opposing opinions depending on who held the power of appointment.

Despite this being a fundamental change to the nation’s judicial system, the Democratic Party of Korea appears set to pass the amendment to the Constitutional Court Act allowing constitutional complaints against court judgments at the National Assembly plenary session to be held on the afternoon of February 27, without sufficient public debate. While the government and the ruling party may boast that they are introducing a new system to protect the basic rights of the people, all the numerous side effects and harms that result will ultimately be borne by the public.

This content was produced with the assistance of AI translation services.