CONTENTS
- 1. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Concept of Constitutional Review of Statutes
- - Adjudication on the Constitutionality of a Statute: Grounds for Referral
- - Adjudication on the Constitutionality of a Statute: Subjects of Referral
- - Adjudication on the Constitutionality of a Statute: Parties Entitled to Refer
- - Methods and Documents for Requesting Adjudication on the Constitutionality of a Statute
- - Adjudication on the Constitutionality of a Statute: Legal Effects
- - Types and Effects of Final Decisions on the Constitutionality of a Statute
- 2. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Concept of the Constitutional Complaint
- - Types of Constitutional Complaints
- - Parties Entitled to File a Constitutional Complaint
- - Requirements and Period for the Claim
- 3. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Response Methods
- - Motion to Request Adjudication on the Constitutionality of a Statute
- - Filing a Constitutional Complaint
- 4. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Key Issues
1. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Concept of Constitutional Review of Statutes
Adjudication on the constitutionality of statutes and a constitutional complaint are legal procedures filed to correct a statute or an exercise of governmental authority that violates the Constitution.
In other words, they are important means by which an individual whose fundamental rights guaranteed under the Constitution have been infringed can obtain relief against the state.
Adjudication on the constitutionality of statutes is a system that determines whether a statute violates the Constitution and, where it is found unconstitutional, causes that statute to lose its effect.
This is one of the core functions of constitutional adjudication, which controls the abuse of legislative power, safeguards the constitutional order, and protects the fundamental rights of the people.
In other words, where a court determines that a statute it must apply in a trial violates the Constitution, it can request the Constitutional Court to determine whether the statute is constitutional, and the Constitutional Court examines this and decides on the question of constitutionality.
Adjudication on the Constitutionality of a Statute: Grounds for Referral
Where the question of whether a statute or statutory provision violates the Constitution is a premise for the trial in a pending case, the court may, ex officio or upon the application of a party, request an adjudication on the constitutionality of the statute.
A representative example is the case in which the question arises whether a statute prescribing a criminal penalty is so abstract that it violates the principle of legality.
Adjudication on the Constitutionality of a Statute: Subjects of Referral
The subject of adjudication on the constitutionality of statutes is limited to statutes in the formal sense, that is, statutes or statutory provisions enacted and promulgated after a resolution of the National Assembly.
-Enforcement decrees, presidential decrees, prime ministerial decrees, ministerial decrees, and other orders and rules are not subjects.
-However, where an order or rule is unconstitutional, the court, rather than the Constitutional Court, directly examines and determines the matter.
Adjudication on the Constitutionality of a Statute: Parties Entitled to Refer
The party who may request an adjudication on the constitutionality of a statute from the Constitutional Court is the court (the adjudicating body).
Where the unconstitutionality of a statute is at issue in a pending case, the court may request the adjudication ex officio, or it may accept a party's application and submit a request to the Constitutional Court.
An ordinary citizen cannot directly request an adjudication on the constitutionality of a statute from the Constitutional Court, but may, as a party to the trial, apply to the court for the request.
Methods and Documents for Requesting Adjudication on the Constitutionality of a Statute
Where a party files an application with the court for referral, the party must submit an application stating the following matters.
-Indication of the relevant case and the parties
-The statute or statutory provision contested as unconstitutional
-Specific reasons for which it is judged to be unconstitutional
-Other matters necessary for the conduct of the trial
If the court grants the referral, it sends the referral document to the Constitutional Court, and where it renders a decision to dismiss, no appeal may be filed.
Adjudication on the Constitutionality of a Statute: Legal Effects
▶Stay of the trial
Where a court has requested the Constitutional Court to adjudicate on the constitutionality of a statute, the trial of the litigation case concerned is stayed until the Constitutional Court renders its decision.
However, where the court finds urgency, it may proceed with the procedures other than the final trial.
▶Submission of a written opinion
Where a request for adjudication on the constitutionality of a statute has been made, the parties and the Minister of Justice may state their views on the constitutionality of the statute by submitting a written opinion to the Constitutional Court.
The written opinion is used as supporting material to reinforce the petitioner's reasoning or to emphasize constitutionality.
Types and Effects of Final Decisions on the Constitutionality of a Statute
▶Types of decisions
The Constitutional Court may render the following final decisions on the adjudication of the constitutionality of a statute.
-Decision of unconstitutionality: declaring that the statute in question violates the Constitution
-Decision of rejection: terminating the review where the requirements are not met
-Decision of limited unconstitutionality / limited constitutionality: unconstitutional or constitutional only within a specific interpretation or scope of application
-Decision of nonconformity to the Constitution: the current statute is unconstitutional, but because an immediate finding of invalidity would create a legal vacuum, the legislature is required to enact improving legislation
▶Effect of a decision of unconstitutionality
When a decision of unconstitutionality is pronounced by the Constitutional Court, the statute or statutory provision in question loses effect from the date of that decision.
Where a statute concerning criminal punishment is decided to be unconstitutional, if there has been a prior case in which a decision of constitutionality was made, it loses effect retroactively from the day following that decision.
A person who received a final conviction under a statute decided to be unconstitutional may request a retrial.
2. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Concept of the Constitutional Complaint
Let us look at the concepts of adjudication on the constitutionality of statutes and constitutional complaints, and of the constitutional complaint.
A constitutional complaint is a system through which, when a citizen's fundamental rights guaranteed under the Constitution are infringed by the exercise or non-exercise of public authority, the citizen may file a claim with the Constitutional Court and obtain relief directly.
Unlike other constitutional adjudication procedures, this can be said to be a core device for guaranteeing fundamental rights under the Constitution in that the citizen directly becomes the party filing the claim for adjudication.
Not only natural persons but also legal entities may be the party filing a constitutional complaint, and this system is regarded as an important constitutional means that has advanced the democracy of the Republic of Korea.
Types of Constitutional Complaints
A constitutional complaint is broadly divided into the following two types, each with different grounds and requirements.
▶Rights-Remedy Constitutional Complaint
-Subject: The exercise or omission of governmental power
-Precondition: Court judgments are excluded
-Exception: A judgment in which a statute found unconstitutional was applied may be the subject of a complaint
-Subsidiarity requirement: If there are other remedial procedures under the law, a complaint can be filed only as a last resort after going through all of them
▶Constitutionality-Review Constitutional Complaint
-Subject: A case where a motion to request adjudication on the constitutionality of a statute is dismissed by the court
-Eligibility to file: A party to the litigation in the case concerned
-Restriction: A request for adjudication on constitutionality cannot be filed again on the same ground
Parties Entitled to File a Constitutional Complaint
A person whose fundamental rights have been directly infringed may file the complaint.
-In the case of the constitutional review type, only a party to the relevant litigation may file
-The infringed right must be one's own fundamental right, and a third party may not, in principle, file
Requirements and Period for the Claim
A constitutional complaint must satisfy strict time limits and requirements. Missing these results in procedural rejection.
▶Filing period for the rights-relief type
-Within 90 days from the date on which the infringement of a fundamental right became known
-Within 1 year from the date on which the infringement of a fundamental right occurred
※ If either of the two periods is exceeded, filing is not possible
Where the infringement is directly caused by a statute, the standard is the date on which the infringement actually occurred, not the date the statute took effect.
Where a relief procedure under another law has been undergone, the complaint must be filed within 30 days from the date of notice of the final decision.
▶Filing period for the constitutionality-review type
-Within 30 days from the date of notice of the decision dismissing the motion to request a court's adjudication on constitutionality
3. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Response Methods
Let us review the procedure for adjudication on the constitutionality of statutes and constitutional complaints.
Motion to Request Adjudication on the Constitutionality of a Statute
An adjudication on the constitutionality of a statute cannot be requested directly by an ordinary person; it is possible only when a court refers the matter to the Constitutional Court.
However, a party to the trial may directly file a motion with the court ‘requesting a referral.’
A motion may be filed where one believes that a statutory provision to be applied in one's ongoing trial violates the Constitution.
▶Order of response
-Submit a 'motion for referral for adjudication on the constitutionality of a statute' to the court hearing the case
-Title: Motion for Referral for Adjudication on the Constitutionality of a Statute
-Addressee: ○○ District Court ○○ Division (the panel currently hearing the case)
-Movant: one's own name, address, contact information, case number, and the like
-Example of the purpose of the motion: “We respectfully request that you refer the matter to the Constitutional Court for adjudication on the constitutionality of the statute."
-Grounds for the motion: the statutory provision believed to be unconstitutional / the basis for regarding it as unconstitutional (compared with constitutional provisions) / a specific description of how the provision infringes one's fundamental rights
Filing a Constitutional Complaint
A constitutional complaint is a system for directly asserting an infringement of fundamental rights before the Constitutional Court.
In principle, representation by an attorney is required, but if certain conditions are met, it may be substituted by the appointment of a court-appointed representative.
Filing on one's own may be considered in situations such as the following.
-Where one has suffered harm because of a legislative omission or because a statute itself is unconstitutional
-Where a referral for adjudication on the constitutionality of a statute has been dismissed and one wishes to contest the unconstitutionality directly
▶Filing procedure
Step 1: Preparing the constitutional complaint petition
-Confirm the type of complaint: infringement of fundamental rights by public power / when a referral for adjudication on the constitutionality of a statute is dismissed
-Strictly observe the filing period: within 90 days from the date the infringement became known and within 1 year / within 30 days from the date of receiving notice of dismissal of the referral
Step 2: Applying for a court-appointed representative (where it is difficult to retain an attorney)
Step 3: Submitting directly to the Constitutional Court by mail or in person
-Documents to be submitted:
Constitutional complaint petition
Power of attorney or application for a court-appointed representative
Attached documents (evidence of the infringement of fundamental rights, related written judgments, written decisions, and the like)
4. Adjudication on the Constitutionality of a Statute and Constitutional Complaint | Key Issues
Adjudication on the constitutionality of statutes and constitutional complaints are among the strongest constitutional means of safeguarding individual rights.
However, these procedures go beyond a simple assertion of rights or an administrative procedure and are an area that requires a high level of legal construction regarding the coherence, logic, and reasonableness of constitutional issues.
The key issues in adjudication on the constitutionality of statutes and constitutional complaints are as follows.
▶Whether the infringement of fundamental rights is concrete and present
▶Whether the principle of subsidiarity is satisfied
▶Whether the requirements for the claim and the procedure are complied with
Adjudication on the constitutionality of statutes and constitutional complaints are not established by a simple assertion of rights or an emotional appeal, and the development of logic and the construction of evidence that meet the high level of legal reasoning required by the Constitutional Court are central.
The assistance of a law firm may be needed for the following reasons.
▶Expertise in preparing the claim and application
▶Handling of procedural responses and requests for supplementation
▶Preparation of a parallel response strategy
Although adjudication on the constitutionality of statutes and constitutional complaints are open to everyone, in practice they are procedures that can be burdensome for an individual without expertise and experience to handle alone.
In particular, because this procedure goes beyond the mere recovery of rights and calls for safeguarding the legitimacy of the national legal order itself and the principles of the Constitution, systematic preparation commensurate with that is needed.
Accordingly, those considering such a procedure may find it advisable to establish a more precise response strategy from the outset through the assistance of an administrative-specialized attorney well versed in constitutional litigation.
At our firm, an administrative-specialized attorney with extensive experience in the fields of administrative litigation and constitutional complaints directly analyzes the case and develops a response strategy.
Those who are considering adjudication on the constitutionality of statutes or a constitutional complaint may consult with an attorney.
Daeryun draws on its accumulated experience to assist with cases.
