Problems with Constitutional Complaints Against Court Judgments

- For Whom Is the System of Constitutional Complaints Against Court Judgments Being Introduced? -

Lim Jong-hoon

Former Director of the National Assembly Research Service

Former Professor, College of Law, Hongik University

1. Meaning of Constitutional Complaints Against Court Judgments

A system under which a citizen whose constitutionally guaranteed basic rights have been infringed by the exercise or non-exercise of public power petitions the Constitutional Court to review whether the relevant exercise of public power is unconstitutional and thereby seeks relief for such infringement is called a constitutional complaint. By contrast, a system under which a citizen who believes that his or her constitutionally guaranteed basic rights have been infringed by a court judgment petitions the Constitutional Court to review whether that judgment infringed such basic rights is called a constitutional complaint against a court judgment.

Article 111(1) of the Constitution sets forth the jurisdiction of the Constitutional Court, and subparagraph 5 includes “constitutional complaints” within that jurisdiction. However, as to what specifically constitutes a constitutional complaint falling within the Court’s jurisdiction, the Constitution provides only for “adjudication on constitutional complaints as prescribed by Act,” thereby leaving the scope of constitutional complaints to be determined by statute. Pursuant to this constitutional provision, Article 68(1) of the Constitutional Court Act provides: “Any person whose basic rights guaranteed by the Constitution have been infringed due to the exercise or non-exercise of public power may file a constitutional complaint with the Constitutional Court, except in the case of judgments of ordinary courts.” From Article 68(1), it is easy to see that court judgments are excluded from the scope of constitutional complaints. However, in a 1997 decision, the Constitutional Court held that, by way of exception, a judgment that infringes a citizen’s basic rights by applying a law or regulation that the Constitutional Court had already declared unconstitutional may be the subject of a constitutional complaint (a decision of limited unconstitutionality regarding Article 68(1) of the Constitutional Court Act, which excludes court judgments from constitutional complaint review; Constitutional Court, Dec. 24, 1997, 96Hun-Ma172 et al. (consolidated)). In other words, court judgments may already be subject to constitutional complaint review on a limited basis. Put differently, constitutional complaints against court judgments are already recognized to a limited extent even under the current system.

What the Democratic Party is currently pursuing, however, is to make it possible, in principle, to file a constitutional complaint against all court judgments where a party to the case believes that the judgment infringes constitutionally guaranteed basic rights of the people, including cases in which such rights were infringed due to a failure to observe due process. Under this policy, on October 20, 2025, the Democratic Party introduced a partial amendment to the Constitutional Court Act to include court judgments within the scope of constitutional complaints. The bill was referred the next day, October 21, to the competent committee, the Legislation and Judiciary Committee, and on February 11, 2026, it was passed in the Committee in the form of an alternative bill under Democratic Party leadership, without a process of public deliberation. The bill was finally passed in plenary session on February 27, 2026. .

Since the Constitutional Court has already recognized the system on a limited basis, constitutional complaints against court judgments are not a wholly unfamiliar institution to us. However, fully expanding the system to cover all court judgments is an entirely different matter, one that could have a significant impact on Korea’s three-tier court system and the constitutional adjudication system as a whole. It therefore requires careful review.

2. Whether Constitutional Complaints Against Court Judgments Are Unconstitutional

The Supreme Court argues that constitutional complaints against court judgments violate the current Constitution. In an opinion submitted to the National Assembly, the National Court Administration, which oversees the judiciary’s administrative affairs, pointed out that Article 101 of the Constitution provides in paragraph 1 that “Judicial power shall be vested in courts composed of judges,” and in paragraph 2 that “The courts shall consist of the Supreme Court, which is the highest court, and courts at each level.” It argues that designating the Supreme Court as the highest court means that all trials must come to an end with a Supreme Court ruling, and that if proceedings continue beyond the Supreme Court merely because a party objects to a court judgment, that would violate the Constitution. In Germany, where constitutional complaints against court judgments are recognized, the Constitution expressly provides that constitutional complaints may be filed with the Federal Constitutional Court against all exercises of public power.

The difference in constitutional foundation between Germany and Korea is another basis for arguing that constitutional complaints against court judgments are unconstitutional.

By contrast, the Constitutional Court and some law professors argue that the introduction of constitutional complaints against court judgments is necessary to protect the people’s basic rights. In other words, the Constitutional Court maintains that because court judgments are also an exercise of public power, they should be subject to constitutional complaint review if they infringe citizens’ basic rights. This position naturally presupposes that constitutional complaints against court judgments are not unconstitutional. The fact that the Constitutional Court had already rendered decisions in several such cases, including those that led to the 1997 decision of limited unconstitutionality on Article 68(1) of the Constitutional Court Act, also supports the Constitutional Court’s position that such complaints are not unconstitutional.

However, quite apart from whether the arguments over the constitutionality of constitutional complaints against court judgments are valid or not, because the authority to determine whether legislation enacted by the National Assembly is unconstitutional ultimately rests with the Constitutional Court, if the partial amendment to the Constitutional Court Act introducing the system in full is promulgated by the President, it would in practice be difficult to invalidate the system by challenging its constitutionality.

3. Other Problems with Constitutional Complaints Against Court Judgments

(1) Whether It Would Create a Four-Tier Trial System

The Supreme Court argues that if constitutional complaints against court judgments are introduced, the three-tier trial system established by the Constitution would collapse and the system would effectively become a four-tier trial system. In response to this controversy, the Constitutional Court argues that constitutional complaints against court judgments are a special constitutional remedy distinct from ordinary appeals. While it is true that such complaints are a special procedure different from ordinary appeals, it cannot be denied that, in effect, they would amount to a fourth level of review, since they would provide yet another opportunity to contest a case that has already gone through three judicial instances. Nor can it be denied that, even after completing three levels of litigation in the ordinary courts, both the party filing the constitutional complaint and the opposing party would have to retain new counsel in order to litigate before the Constitutional Court and then wait several years for a result.

(2) Overwhelming Increase in the Constitutional Court’s Workload

If constitutional complaints against court judgments are introduced in full, the number of cases the Constitutional Court must hear will surge. Until now, the Constitutional Court has received on average about 2,000 to 3,000 cases per year. If the system is fully introduced, however, considering that the Supreme Court handled about 40,000 cases over the past year and that the average appeal rate in civil and criminal cases in Korea is around 30 percent, the number of constitutional complaints against court judgments filed with the Constitutional Court could exceed 10,000 per year. In other words, the Constitutional Court’s workload could increase four- to fivefold. As of 2024, the Constitutional Court’s average case-processing period was 724.7 days, or about two years. If its workload increases four- to fivefold due to the full introduction of constitutional complaints against court judgments, the average processing period can be expected to become much longer than it is now. Ultimately, more time would be required for the vindication of rights, resulting in significant cost and hardship for citizens and leading to increased social costs.

In addition, under Article 111(1) of the Constitution, the Constitutional Court has jurisdiction not only over constitutional complaints but also over adjudication on the constitutionality of statutes, impeachment adjudication, adjudication on dissolution of political parties, and competence disputes. Among these, adjudication on the constitutionality of statutes is by far its most important primary function. The authority to determine whether a statute passed by majority vote in the National Assembly and promulgated by the President on the belief that it has no constitutional defect is unconstitutional is the Constitutional Court’s most important power, because it enables the Court to check the political branches, namely the National Assembly and the President. If constitutional complaints against court judgments are broadly recognized, however, the explosive increase in such complaints would inevitably diminish the Constitutional Court’s function of reviewing the constitutionality of statutes. That would amount to putting the cart before the horse and could deal a fatal blow to the Court’s primary role of checking the National Assembly and the President. Even in the case of the U.S. Supreme Court, which is not institutionally separate from constitutional review and also conducts review of statutes, its most important function in practice is not that of an appellate court for ordinary litigation, but rather that of determining whether federal or state laws violate the U.S. Constitution. In that sense, the importance of the Constitutional Court’s function of reviewing the constitutionality of statutes cannot be overstated.

Until 2007, constitutional complaints were permitted against prosecutors’ non-indictment decisions, and the Constitutional Court reviewed such cases one by one. However, as concerns arose over whether it was appropriate for the nation’s highest constitutional adjudicative body to review the propriety of prosecutors’ decisions not to indict, the Criminal Procedure Act was amended on June 1, 2007, during the Roh Moo-hyun administration, to allow applications for judicial review against all non-indictment decisions by prosecutors, thereby resolving the issue through a mechanism other than constitutional complaint. Attempting to recognize constitutional complaints against court judgments runs directly counter to the efforts made by the National Assembly in 2007 to exclude prosecutors’ non-indictment decisions from the scope of constitutional complaints.

(3) Possibility of Abuse of the Injunction System in Constitutional Complaints Against Court Judgments

If one examines the partial amendment to the Constitutional Court Act that passed the National Assembly, proposed Article 71-2 provides that “when the Constitutional Court has received a petition for constitutional complaint adjudication, it may, ex officio or upon the petitioner’s application, decide to suspend the effect of the exercise of public power that is the subject of adjudication until the final decision is rendered.” This would make it possible to obtain an injunction against the exercise of public power that is the subject of constitutional complaint review. Accordingly, where a constitutional complaint against a court judgment is filed, the effect of the final judgment may be suspended. This means that constitutional complaints against court judgments could be abused as a litigation-delay strategy by parties who lost in court.

4. Conclusion

Even though one does not hear claims that, in Korea, people have suffered injustice or that judicial justice has been undermined because there is no system of constitutional complaints against court judgments, it is difficult to understand why legislation is being pushed forward in a rushed manner, without a proper process of public deliberation, to introduce a system that could shake the very foundations of the judicial system. Moreover, if one looks at Germany, where constitutional complaints against court judgments are recognized, the acceptance rate does not even reach 1 percent. It is therefore questionable whether it is truly necessary or desirable, for the sake of the people, to introduce such a system and thereby require litigants to go through what would in effect be four rounds of litigation while bearing the accompanying economic costs and mental suffering.

Note: The views expressed herein may differ from those of the Hansun Foundation.

(※ It's a translation based on machine translation)