2026-07-17 01:21:07
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260716_briefE.pdf
260716_briefE.pdf
Politics Threatening the Rule of Law- A Particular Will cannot Take the Place of Law
In-ho Lee
Professor of Constitutional Law,
Chung-Ang University School of Law
1. Introduction: A Particular Will Cannot Take the Place of Law
2. Neutralizing the Judiciary: Amending the Constitution by Statute
3. Dismantling Criminal Justice and the Problem of Self Exemption
4. Destroying the Democratic Public Sphere: Media Legislation
5. Overall Assessment: Majority Rule, Constitutionalism, and the Particular Will
1. Introduction: A Particular Will Cannot Take the Place of Law
The essence of the rule of law lies in the generality of law. Law must not be made to target or favor a particular person. It must operate as a general and abstract norm established in advance and apply the same standard to everyone. This is why political philosophy since Rousseau has distinguished the general will from the particular will. The moment a particular will serving one person's interests clothes itself in the form of law and thereby overrides or supplants law itself, the rule of law becomes an empty shell. The Constitution's declaration that "All citizens shall be equal before the law" (Article 11(1)) affirms this generality of law as a limit that even majority rule may not cross. Constitutional law has likewise been wary of so-called individual-case statute (처분적법률; Einzelfallgesetz), which regulates a specific case or person in an individualized and concrete manner. Such legislation is a disposition (처분) clothed in the outer form of a norm a particular will disguised as law.
The proposition that a particular will cannot replace law is not merely a demand for fairness; it concerns the very concept of law. Rousseau's general will must be general not only in its source who determines it but also in its object to whom it applies. A rule aimed at a specific person is no longer law but an exercise of will, even if it has passed by parliamentary majority. The claim that it "passed a majority vote" cannot cure that substantive defect. The generality of law also serves as a mechanism by which lawmakers bind themselves. Because legislators do not know whom the rules they enact will affect in the future, they too remain subject to those rules. Once the target is fixed from the outset, however, this reciprocity collapses: lawmakers place themselves outside the norm and direct it only at others. What remains is not the rule of law but the rule of men, and the rule of law retains its name while losing its substance.
This article advances a single argument. A recent series of legislative measures and political practices led by the dominant ruling party are converging on a course that damages the generality of law and enforces particular wills through legal form. The method is not an overt destruction of the Constitution, but destruction clothed in the appearance of legality something close to autocratic legalism. It neutralizes, one by one,the judiciary, the prosecution, and the press, while presenting each measure under the banner and form of "reform" and "legislation." I have broadly characterized the impeachment, removal from office, and realignment of power that followed the declaration of martial law in December 2024 as a "soft parliamentary coup." I view the current ruling party's legislative dictatorship, which emerged as its consequence, as an extension of that process. The central issue is that, following the change of government, the substance and purpose of the ruling party's the judiciary, the prosecution, and the media conflict with constitutional principles.
2. Neutralizing the Judiciary: Amending the Constitution by Statute
The so called "Three Judicial Reform Acts" the amendment to the Criminal Act creating the offense of perverting the law, the amendment to the Constitutional Court Act introducing constitutional complaints against court judgments, and the amendment to the Court Organization Act enlarging the Supreme Court passed the National Assembly between February 26 and 28, 2026, and took effect on March 12. Each of the three is objectionable on its own, but their combined effect makes them more dangerous still.
1) Constitutional Complaints Against Court Judgments(재판소원)
The constitutional defect lies not in the concept of constitutional complaints against court judgments itself, but in the attempt to introduce the system through ordinary legislation. Such a system would allow the Constitutional Court to reexamine and annul judgments of the Supreme Court. In effect, it would elevate the Constitutional Court above the Supreme Court and confer on it the status of the "highest court." Yet the current Constitution places the Constitutional Court and the Supreme Court in parallel positions. Article 101(2) establishes the Supreme Court as the "highest court"; Article 107 assigns review of the constitutionality of statutes to the Constitutional Court and review of the constitutionality or legality of administrative decrees, regulations, and dispositions to the Supreme Court; and Article 111 exhaustively enumerates five matters within the Constitutional Court's jurisdiction. Drawing the boundary of authority between these two institutions is a constitutional matter, not a matter for ordinary legislation. In its decision of December 24, 1997 (96Hun-Ma172·173 (consol.)) By way of a decision of limited unconstitutionality (한정위헌결정), it recognized an exception only for judgments that infringed fundamental rights by applying a statute the Court had already declared unconstitutional, and it maintained this basic framework through March 2026. This consistent self-restraint demonstrates that the boundary is not a policy line the legislature may casually move, but one fixed at the constitutional level. A comprehensive system covering all final judgments would therefore be qualitatively different from that narrow exception: it would alter the very allocation of judicial power. Such a change requires the constitutional amendment procedure under Article 130. Accomplishing it by statute circumvents that procedure.
Some argue that Article 111(1)(5) refers to "constitutional complaints as prescribed by Act," leaving their scope to legislative discretion. But the text delegates authority to define the types and requirements of constitutional complaints; it does not authorize the legislature to place Supreme Court judgments under Constitutional Court review and create a new appellate hierarchy between the two judicial institutions. The former concerns the internal design of the Constitutional Court's jurisdiction. The latter concerns the Constitution's decision in Article 101(2) to establish the Supreme Court as the highest court.
2) Expanding the Supreme Court: Destroying Its Character as the Highest Court
The amended Court Organization Act increases the number of Supreme Court justices from 14 to 26, adding four each year over three years beginning in 2028. The Supreme Court's status as the "highest court" means more than merely occupying the apex of the appellate structure. It guarantees the essential functions of ensuring uniform interpretation of law and leading the development of jurisprudence. Those functions can be performed only through a single Grand Bench (전원합의체) in which all justices sit and deliberate together. This is why the highest courts of major countries maintain small, select benches: nine justices in the United States, nine in Canada, 12 in the United Kingdom, and 15 in Japan. With 26 members, operating a single Grand Bench would become physically impracticable, and the Supreme Court would lose its functional character as the highest court.
The ruling party invokes "reducing trial delays" and "diversifying the Court's composition," and points to the large number of judges on Germany's Federal Court of Justice (Bundesgerichtshof, BGH). The comparison does not hold, however, because the BGH is not the constitutionally designated single highest court. The real solution to trial delays is not enlarging the Supreme Court, but strengthening the lower courts and improving the quality of adjudication. Expanding the Supreme Court would instead produce a "balloon effect" of weakened lower courts and increased fiscal burdens. More troubling still are the speed of the change and the apparent intent of institutional capture. Under the amended law, the incumbent president would appoint all 12 newly added justices during the presidential term, as well as replacements for sitting justices who reach retirement age - 22 appointments in total. No administration has appointed 22 of 26 Supreme Court justices in the 76 years since the Court Organization Act was enacted in 1949. The episode recalls President Franklin D. Roosevelt's 1937 court-packing plan, which failed amid the U.S. Senate Judiciary Committee condemned it as "an invasion of judicial power such as has never before been attempted in this country" (S. Rep. No. 75-711 (1937)).
3) The Offense of Distorting the Law: A Channel for Pressuring Judges
The newly enacted offense of perversion of law (Article 123-2 of the Criminal Act) subjects judges, prosecutors, and others to imprisonment for up to ten years if they distort the law to favor or disadvantage a party.It took effect immediately upon promulgation, on March 12, 2026. Supporters cite a German legislative precedent and the need to strengthen judicial accountability. Yet Korea's Criminal Act already punishesdereliction of duty (Article 122) and abuse of authority (Article 123), weakening the case for a separate offense. Above all, the claim that "Germany has it too" compares unlike systems. German Criminal Code Article 339 (Rechtsbeugung) has been construed by case law with extraordinary narrowness: it applies only to a "grave violation of law" in which a judge consciously and seriously departs from the law and adjudicates according to an idiosyncratic standard. In addition,the so-called blocking effect (Sperrwirkung) often described as the judge's privilege (Richterprivileg) permits other crimes committed through adjudication to be punished only when Rechtsbeugung is also established. Together, these safeguards raise the threshold for punishment twice over and protect judicial independence. Korea's new provision imports only the broad shell of "distortion of law," without the safeguards of restrictive interpretation or preclusive effect. Even in Germany, constitutional controversy has persisted over the concept's vagueness, in light of the principle of clarity (명확성원칙, the Korean counterpart of the void-for-vagueness doctrine), and the danger that it maya means of bringing judges to heel, in tension with judicial independence. The provision has survived only because it is interpreted with extreme narrowness. If Korea opens a channel through which dissatisfaction with a judgment can be converted directly into a criminal complaint without comparable controls, the independence of judges guaranteed by Article 103 of the Constitution will inevitably be seriously chilled.
3. Dismantling Criminal Justice and the Problem of Self-Exemption
An amendment to the Government Organization Act on September 26, 2025, confirmed the abolition of the Prosecutors' Office. The Public Prosecution Office Act and the Serious Crimes Investigation Agency Act passed in March 2026, and the Prosecutors' Office (검찰청) is scheduled to disappear on October 2, 2026. Prosecution will be handled by a Public Prosecution Office (공소청) under the Ministry of Justice, while investigations will be assigned to a Serious Crimes Investigation Agency (중대범죄수사청) under the Ministry of the Interior and Safety. This restructuring intersects with a special-counsel investigation into allegations of fabricated prosecutions and the issue of withdrawing charges. The ruling party has pursued a plan to give the special counsel authority to withdraw prosecutions, and at a press conference marking the first anniversary of taking office on June 8, 2026,the president indicated that he would leave the final decision to the National Assembly.
The ruling party argues that separating investigation from prosecution accords with a global trend toward dispersing the prosecution service's excessive powers. Abolishing the Prosecutors' Office, however, may conflict with the constitutional institution of the public prosecutor itself. Unusually, the Korean Constitution expressly identifies a particular state official: the "prosecutor." Articles 12(3) and 16 require that compulsory measures such as arrest, detention, seizure, and search be carried out under warrants issued by a judge upon a prosecutor's application, thereby granting prosecutors the exclusive authority to request warrants. By directly assigning power to this specific office, the Constitution treats the institution of the prosecutor not as a statutory body the legislature may abolish at will, but as an institution contemplated by the Constitution itself. If the Prosecutors' Office is abolished and investigation and prosecution are divided between separate bodies, it becomes unclear where the constitutionally contemplated "prosecutor" remains and how the investigative agency is to exercise warrant-request authority. Separating the body conducting compulsory investigations from the official empowered to request warrants may create investigative gaps and confusion. More fundamentally, dismantling by ordinary statute an institution whose basic structure is set by the Constitution is another instance of "amending the Constitution by statute." Beyond that lies a basic conflict of interest. Instituting and withdrawing a prosecution are prosecutorial powers under Articles 246 and 255 of the Criminal Procedure Act, which embody the principle of state prosecution and govern withdrawal of prosecution. Designing a system under which a special counsel appointed by the president may withdraw charges in a case where the president is the defendant directly violates the foundational principle that no one may be a judge in his own cause (nemo judex in causa sua). If a method of terminating a case that is unavailable to ordinary citizens operates only for a particular holder of power, it is the most overt form of enforcing a particular will.
4. Destroying the Democratic Public Sphere: Media Legislation
The media-related measures pursued by the current ruling party are scattered across separate statutes, but they form a single pattern: control over the governance of public broadcasters, expanded regulation of new media, and punitive silencing of critical journalism.
The amended Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (hereinafter the "Information and Communications Network Act"; Act No. 21305, effective July 7, 2026) creates a category of "false or manipulated information," introduces the broad concept of "information infringing legally protected interests (법익; Rechtsgut)" and a new category of "information inciting hatred," and imposes punitive damages of up to five times the amount of loss for intentional dissemination. Two problems stand out. First, it is difficult to predict what manner of infringement of which legally protected interest will trigger regulation, raising serious concerns under the principle of legal clarity. In 2010, the Constitutional Court declared former Article 47(1) of the Framework Act on Telecommunications unconstitutional for vagueness. That provision punished anyone who "publicly transmitted false communications ... with the intent to harm the public interest (decision of December 28, 2010, 2008Hun-Ba157·2009Hun-Ba88 (consol.), the so-called "Minerva case). If the provision was unconstitutional despite containing the limiting element of an "intent to harm the public interest," the amended law's reliance on even more ambiguous concepts presents an even graver constitutional problem. Second, punitive damages are civil liability in form, but in substance they function as ex post censorship designed to produce a chilling effect by imposing enormous costs on media outlets and platforms. On December 31, 2025, immediately after the law's passage, the U.S. Department of State took the unusual step of expressing "expressing significant concerns."
The Three Broadcasting Acts the Broadcasting Act, the Foundation for Broadcast Culture Act, and the Korea Educational Broadcasting System Act, all amended and brought into force in 2025 together with the creation of the Broadcasting, Media and Communications Commission, have upended the systems governing the appointment of boards and presidents of public and private broadcasters and the allocation of programming authority. They also forcibly terminated the terms of commissioners serving on the previous regulatory body.In a unanimous decision upholding the Broadcasting Act's prohibition on interference with broadcast programming, the Constitutional Court held that… (decision of August 31, 2021, 2019Hun-Ba439; author's translation). Restructuring governance by statute so as to replace the effective holder of programming authority is a classic form of the "broadcast capture" against which that decision warned.
The ruling party invokes remedies for the harms caused by fake news and the political independence of public broadcasting. Yet expression should be prohibited not according to its "content" but according to the "risk that it will lead to unlawful conduct." The spirit of constitutionalism and freedom of the press requires trust in the self-correcting capacity of democratic debate and minimal legal regulation. If legislation enacted in the name of independence instead institutionalizes permanent control by a particular political force, it is not reform but capture conducted in the language of reform. Once the law entrenches an outcome opposite to its stated justification, the claim of independence is revealed as camouflage.
5. Overall Assessment: Majority Rule, Constitutionalism, and the Particular Will
The absence of generality is especially troubling. If judicial restructuring, the dismantling of the prosecution, withdrawal of charges, and regulation of expression all proceed at the very moment a particular politician faces acute legal risk - and all move in the direction of eliminating that risk - they are laws only in form. In substance, they are individualized dispositions enforcing a particular will. A particular will must not overwhelm or replace law. That proposition is the minimum condition of the rule of law that today's politics is betraying.
The rule of law is not an instrument for the convenience of a government; it is a constitutional command that binds the government. A parliamentary majority does not have the authority to suspend that command. What is needed now is not greater legislative speed, but self-restraint before the limits established by the Constitution. When an unchecked majority joins with a particular will and dons the outer form of law, democracy retains its form while losing its substance. The last line of defense against that regression is the restoration of institutional checks and a civic awakening that demands them.
This article may differ from the views of the Hansun Foundation
(※ It's a translation based on machine translation)
