Supreme Court of Korea

The Supreme Court of Korea (Korean: 대법원; Hanja: 大法院; RR: Daebeobwon) is the highest ordinary court in the judicial branch of South Korea, seated in Seocho, Seoul. Established under Chapter 5 of the Constitution of South Korea, the Court has ultimate and comprehensive jurisdiction over all cases except those cases falling under the jurisdiction of the Constitutional Court of Korea. It consists of fourteen Justices, including the Chief Justice of the Supreme Court of Korea. The Supreme Court is at the top of the hierarchy of all ordinary courts in South Korea, and traditionally represented the conventional judiciary of South Korea. The Supreme Court has equivalent status as one of the two highest courts in South Korea. The other is the Constitutional Court of Korea.

Supreme Court of Korea
대한민국 대법원
Symbol of the Supreme Court of Korea
Supreme Court of Korea in Seocho, Seoul
Established1948 (1948)
LocationSeocho, Seoul
Composition methodAppointed by President with consent of National Assembly
(for associate Justices, nomination of Chief Justice is additionally required)
Authorized byConstitution of South Korea Chapter V
Judge term lengthSix years, renewable
(mandatory retirement at the age of 70)
Number of positions14 (by statute)
Websitescourt.go.kr
Chief Justice
CurrentlyKim Myeong-soo
Since25 August 2017 (2017-08-25)
Supreme Court of Korea
Emblem of ordinary Courts of Korea
Korean name
Hangul
Hanja
Revised RomanizationDaebeobwon
McCune–ReischauerTaebŏbwon

History and Status

Cho Bong-am is victim for notorious judicial murder in South Korean legal history

The original constitution during the First Republic established 'Supreme Court' and 'Constitutional Committee' (Korean: 헌법위원회) in Chapter 5. The Supreme Court was established as the highest ordinary court but lacked the power of constitutional review, which was conferred upon the Constitutional Committee, a sort of constitutional court. This distribution of judicial power inside judiciary was never fully realized under rule of South Korea's first president Syngman Rhee, whose dictatorship hampered the Committee's function and eventually left it unable to re-constitute itself.[1] Though the Supreme Court had no power of judicial review, it enjoyed judicial independence under legendary first Chief Justice of the Supreme Court, 'Kim Byung-ro' (Korean: 김병로), from 1948 to 1957. Renowned for his ardent participation in Korean independence movement during the Japanese colonial rule, Chief Justice Kim Byung-ro is also famous for defending the independence of the judiciary from Syngman Rhee.[2]

However, after Kim Byung-ro's retirement in 1957, the Supreme Court fell to autocratic influence. By giving the death sentence to Park's political contender Cho Bong-am in 1959 and also by sentencing death on defendants of People's Revolutionary Party Incident in 1975 under Park Chung-hee's era, the Supreme Court gained notorious reputation for judicial murder (Korean: 사법살인) as obediently sentencing capital punishments over spy scandals fabricated by dictators.[3] After the April Revolution, the Constitutional Court was established to replace the Constitutional Committee, but the Supreme Court remained largely unaffected by the changes. After Park Chung-hee's 1961 coup, the Second Republic was dissolved and, after a nominal transition to civilian rule from a military junta, the Third Republic was established in 1962. The Constitutional Court, itself never formed because of the coup, was abolished while the power of judicial review was conferred on the Supreme Court. Nevertheless, the Supreme Court retained its deference towards the ruling dictator. Though there was once a time in 1971 when the Supreme Court revolted institutionally against rule of President Park Chung-hee by exercising power of judicial review, President Park retaliated by refusing reappointment of Supreme Court Justices, which at that point had been a formality. The Fourth and Fifth Republics would endow a new, differently-formed Constitutional Committee with the power of judicial review but on the condition that a court first formally request for review before the Committee could consider the issue. Of course, this was by that point a dead letter, since the Supreme Court would never allow for the requests necessary for the Committee to perform this function, effectively allowing the military to act with impunity.[4] Following 1987 democratization, the Constitutional Court was restored with the establishment of the Sixth Republic, with the power of judicial review. To prevent a recurrence of judicial reluctance like had happened after 1971, the constitutional amendment which established the Sixth Republic allows citizens to file a constitutional complaint even if the courts refuse to do so.[5]

The Supreme Court of Korea after democratization is famous for highly efficient daily judicial system than most of other developed countries. For example, South Korean ordinary judiciary ranked at top-tier for both rapidness of trial length and cost efficiency at comparative research of OECD in year 2015.[6]

Composition

Justices

Since the current Constitution of South Korea doesn't specify the exact number of Supreme Court justices (Korean: 대법관),[7] the number of justices is stipulated by the statute called the Court Organization Act (Korean: 법원조직법) on the organization of ordinary courts.[8] Currently in 2022, the number of justices is 14 by article 4(2) of the Act. All of the Supreme Court justices are appointed by the President of South Korea with the consent of the National Assembly, according to article 104(2) of the Constitution. It is notable that article 104(2) of the Constitution also empowers the Chief Justice of the Supreme Court to recommend candidates for Supreme Court justice. To be appointed as Supreme Court justice, one should be at least 45 years old, qualified as an attorney at law, and also should have more than 20 years of experience in legal practice or academia, by article 42(1) of the Act.

Council of Supreme Court Justices

Article 104(2) of the Constitution requires consent of 'Council of Supreme Court Justices' (Korean: 대법관회의) for appointment of lower ordinary courts Judges (Korean: 판사) by Chief Justice of the Supreme Court. The council is composed of all Supreme Court Justices (including the Chief Justice), and can make decision by simple majority among quorum of two-thirds of all Supreme Court Justices, according to article 16(1), (2) and (3) of the Court Organization Act. When the vote ties, the Chief Justice has casting vote as permanent presiding chair at the council. Also empowered by article 17 of the Act, the council has also other supervisory functions for the Chief Justice's power of court administration, such as promulgation of interior procedural rules, selection of judicial precedents for publication and fiscal planning for all ordinary courts including the Supreme Court itself.

Chief Justice of the Supreme Court

By article 104(1) of the Constitution, the Chief Justice of the Supreme Court is appointed by the President of South Korea with the consent of the National Assembly. The experience and age requirements for the Chief Justice are the same as that of the associate Supreme Court justices under article 42(1) of the Court Organization Act.

The Chief Justice's role is more than being the presiding member of the Grand Bench (Korean: 전원합의체), composed of more than two-thirds of all fourteen justices. The Chief nominates candidates for three of the nine Constitutional Court justices under article 111(3) of Constitution and serves as chair at the Council of Supreme Court Justices. Also, the Chief appoints one of the associate Supreme Court justices as Minister of National Court Administration (Korean: 법원행정처) and appoints all ordinary lower court judges with the consent of the Council of Supreme Court Justices.

Tenure

Article 105(1), (2) and (4) of the Constitution and article 45(4) of the Court Organization Act provides the term of associate Justices as renewable six-year up to mandatory retirement age of 70. However, there's no Justices who attempted to renew their term by reappointment in current Sixth Republic,[9] because renewing attempt can harm judicial independence of the Court. During the term, according to article 106(2) of the Constitution, Justices shall not be expelled from office unless by impeachment or a sentence of imprisonment. Also, participating in any political party or activities are prohibited by article 43(1), 49 of the Act.

A noteworthy point of South Korean Supreme Court Justices is they can be retired from office against their will while in term, when they are regarded as having unbearable mental or physical impairment. This 'order' of retirement by President of South Korea due to impairment of Supreme Court Justice (Korean: 심신장해로 인한 퇴직명령) is clearly stipulated in article 106(2) of the Constitution and article 47 of the Act. Other lower ordinary court Judges can also be ordered to retire due to impairment by Supreme Court Chief Justice. This is retirement order system is one of major difference between Supreme Court Justice and Constitutional Court Justice; the latter cannot be ordered to retire because of impairment, as there are no statute supporting such retirement order system in the Constitutional Court Act.[10]

Current justices

Name Born Appointed by Recommended by Education First day / Length of service
Kim Myeong-soo (Chief Justice) October 12, 1959 (age 63) in Busan Moon Jae-in (Directly) Seoul National University September 25, 2017 / 5 years, 4 months
Kim Jae-hyung January 23, 1965 (age 58) in Imsil Park Geun-hye Yang Sung-tae Seoul National University September 5, 2016 / 6 years, 4 months
Cho Jae-youn June 1, 1956 (age 66) in Donghae Moon Jae-in Yang Sung-tae Sungkyunkwan University July 19, 2017 / 5 years, 6 months
Park Jung-hwa October 3, 1965 (age 57) in Haenam Moon Jae-in Yang Sung-tae Korea University July 19, 2017 / 5 years, 6 months
Ahn Chul-sang March 5, 1957 (age 65) in Hapcheon Moon Jae-in Kim Myeong-soo Konkuk University January 2, 2018 / 5 years
Min You-sook January 31, 1965 (age 57) in Seoul Moon Jae-in Kim Myeong-soo Seoul National University January 2, 2018 / 5 years
Kim Seon-soo April 23, 1961 (age 61) in Jinan Moon Jae-in Kim Myeong-soo Seoul National University August 2, 2018 / 4 years, 5 months
Lee Dong-won (judge) February 7, 1963 (age 59) in Seoul Moon Jae-in Kim Myeong-soo Korea University August 2, 2018 / 4 years, 5 months
Noh Jeong-hee October 7, 1963 (age 59) in Gwangju Moon Jae-in Kim Myeong-soo Ewha Womans University August 2, 2018 / 4 years, 5 months
Kim Sang-hwan January 27, 1966 (age 57) in Daejeon Moon Jae-in Kim Myeong-soo Seoul National University December 28, 2018 / 4 years, 1 month
Rho Tae-ak November 20, 1962 (age 60) in Changnyeong Moon Jae-in Kim Myeong-soo Hanyang University March 4, 2020 / 2 years, 10 months
Lee Heung-gu May 30, 1963 (age 59) in Tongyeong Moon Jae-in Kim Myeong-soo Seoul National University September 8, 2020 / 2 years, 4 months
Cheon Dae-yeop February 6, 1964 (age 58) in Busan Moon Jae-in Kim Myeong-soo Seoul National University May 8, 2021 / 1 year, 8 months
Oh Kyeong-mi December 16, 1968 (age 54) in Busan Moon Jae-in Kim Myeong-soo Seoul National University September 17, 2021 / 1 year, 4 months

Organization

Research judges

Judges in Research division of the Supreme Court (Korean: 재판연구관, formerly known as 'Research Judges' or 'Judicial Researchers') are officials supporting Supreme Court Justices. By article 24(3) of the Act, there are two types of Research Judges; One is originally lower ordinary court Judges seconded to the Supreme Court by order of Chief Justice, another is experts who are not lower ordinary court Judges. The latter is called 'Judicial Researchers' and appointed for maximum term of 3 years, while former is called 'Research Judges' and usually seconded to work in the Supreme Court for 1 to 2 years. This system is influenced by German 'Research Associates'[11] (German: Wissenschaftlichen Mitarbeiter) who are originally lower court judges seconded to federal courts up to five years, working as judicial assistant for judges in highest courts. Though working term for these research staffs are short, they are core staffs who operates whole procedure of the Court, since there are too many of cases appealed to the Court. The number of Research Judges are currently around 100,[12] while number of Judicial Researchers are around 30.[13]

National Court Administration

Established as apparatus of the Supreme Court under article 67 of the Court Organization Act, the 'National Court Administration' (NCA, Korean: 법원행정처) manages all of matters on administration of all ordinary courts (including the Supreme Court itself) in South Korea. The head of the NCA is called 'Minister of NCA' (Korean: 법원행정처장) and solely appointed by the Chief Justice among associate Supreme Court Justices. As other Supreme Court Justices, the Minister is treated as same level as other Ministers at State Council in executive branch of South Korean government. Also the Vice Minister of NCA is appointed by the Chief Justice usually from senior lower court Judges and treated as same level as other Vice-Ministers. The NCA follows direction of the Chief Justice and implements decisions from the Council of Supreme Court Justices. Its main role includes assisting the Chief Justice's power on human resource issues of lower ordinary court Judges, planning fiscal budget and expenditure issues for all ordinary courts, and internal inspection for anti-corruption ethics.[14]

Judicial Research and Training Institute

The 'Judicial Research and Training Institute' (JRTI, Korean: 사법연수원) is currently an institution for training and reeducating lower ordinary court Judges by article 72 of the Court Organization Act. However, it was originally a kind of nation-wide 2-year law school supported by South Korean government before South Korea adopted American styled 3-year law school system in year 2008. Before South Korea adopted American law school system (Korean: 법학전문대학원), South Korea trained its legal professionals mainly by JRTI. Another route was recruitment by South Korean Armed Forces as 'Judge Advocates' (Korean: 군법무관).

The JRTI was basically a South Korean conversion of 'Legal Research and Training Institute' (Japanese: 司法研修所) in Japan, which was an institution for training judges, prosecutors and attorneys-at-laws at the same time. The trainees at JRTI was selected by a nation-wide exam on jurisprudence called 'Judicial exam' (Korean: 사법시험). These trainees were commonly trained and competed against each other in the JRTI for 2 years, as their career option after graduation was restricted according to graduation records of JRTI. Graduated trainee with superior records usually choose to become Judges and Prosecutors, while trainees with lower records had to choose working as lawyers in fields. This partially continued civil law tradition of regarding prosecutors as de facto part of judiciary, like French National School for the Judiciary, is reflected in organization of JRTI, as the deputy director (or vice-president) of the JRTI is appointed among Prosecutors by article 74(1) of the Act. Yet after American styled 3-year law school system was adopted in South Korea, the JRTI lost its status as only professional school for law in South Korea, and turned into internal education institute for newly appointed Judges and Law clerks. Some of senior Judges are also retrained in JRTI for technical matters.[15] Also, currently all of training functions for Prosecutors are transferred to 'Institute of Justice' (Korean: 법무연수원) at Ministry of Justice.[16]

Judicial Policy Research Institute

Established by article 76-2 of the Court Organization Act in year 2014, the 'Judicial Policy Research Institute' (JPRI, Korean: 사법정책연구원) is apparatus of the Supreme Court for research on policy issues concerning judicial system of South Korea. It also has function for educating public on elementary issues on function of ordinary courts. Research fellows and Researchers at the Institute are recruited mainly from lower ordinary courts Judges, yet significant number of Researchers are recruited from outside of ordinary courts usually with PhD degrees, by article 76-4 of the Act. The JPRI is currently located in Goyang, Gyeonggi.[17]

Building

The Supreme Court was located in Jung-gu, Seoul until the 1990s. Currently the Building is used by Seoul Museum of Art

The Supreme Court was located in Seosomun-dong of Jung-gu, Seoul until year 1995. Currently, it is located in Seocho, Seoul. The Supreme Court building in Seocho has 16 floors and two underground floors with total space around 66,500 square meters. This large size building was necessary to hold the Supreme Court, National Court Administration and law library all together. Main Center of the building is mainly used by the Supreme Court, while east Wing is maily used by National Court Administration. Other Wing is used by law library. At the center entrance of the building, three Korean words are engraved; Korean: 자유 meaning freedom, Korean: 평등 meaning equality, and Korean: 정의 meaning Justice.[18] The Supreme Court usually does not hold open hearing session, though sessions for verdicts are regularly held on the second and last Thursday of a month.[19]

Current Supreme Court building from 1995 in Seocho, Seoul

Jurisdiction

Empowered by article 101(2) and 110(2) of the Constitution, the Supreme Court has comprehensive final appellate jurisdiction over all ordinary courts and military courts cases. It can also exercise power of judicial review on sub-statutory level as other ordinary courts according to article 107(2) of the Constitution. It is notable that some of cases are handled only in the Supreme Court as single-tiered trial without possibility of appeal. This kind of single-tiered trial cases include dispute on election of President of South Korea, National Assembly members, and Provincial-level local governors and local parliament members according to article 222 and 223 of the Public Official Election Act.[20] Another example of single-tiered trial case at the Supreme Court is case on discipline of Judge's misconduct, under article 27(2) of the Discipline Of Judges Act.[21]

Procedure

By article 7(1) of the Court Organization Act, the Supreme Court handles final appellate cases in two different phases. One is 'Petty Bench' which is a small panel inside the Court presided by most senior Justice inside the Petty Bench, and the other is 'Grand Bench' which is an en banc of the Court which is always presided by the Chief Justice.

Petty Bench and Grand Bench

In the first phase, the 'Petty Bench' (Korean: 소부) composed of four Supreme Court Justices reviews how appeal should be handled. If the four Justices in the same Petty Bench makes decision unanimously, the case is decided in the Petty Bench. However, when the Petty Bench cannot make unanimous decision by itself, or when the Petty Bench decides such case should be handled in en banc (for example, if it is necessary to change precedent of the Supreme Court, or if constitutional review at sub-statutory level is important issue of the case, etc.), the Grand Bench takes the case. Since there is three petty benches in the Court, only twelve out of fourteen Supreme Court Justices are participating in the first phase of the procedure. Other two Supreme Court Justices who are not belonged to any Petty Bench, are the Chief Justice and the Minister of National Court Administration, both having administrative role inside the Court. In the second phase, the 'Grand Bench' (Korean: 전원합의체) composed of more than two-thirds of all Supreme Court Justices reviews the case came up from the Petty Bench. It makes decision by simple majority. However, if there's no majority opinion in the Bench, opinion of the Court is decided according to article 66 of the Act.[22]

Presiding Justice and Justice in charge

In South Korea, among panel of Judges or Justices, there should be 'presiding member (Korean: 재판장)' and 'member in charge (Korean: 주심)'. The presiding member is official representative of the panel. The member in charge is who oversees hearing and trial and writes draft judgment for each specific case. This role of 'member in charge' is mostly similar to Judge-Rapporteur in European Court of Justice. Usually the member in charge is automatically (or randomly) selected by computer to negate suspicion of partiality. However, the presiding member is bureaucratically selected by seniority. Due to this virtual difference in role, 'presiding Judge' in South Korean courts usually refer toKorean: 부장판사 which means such Judge is bureaucratically regarded as 'head of the panel', not who really takes role of presiding member in each of specific cases.[23]

Case naming

Current cases in the Supreme Court are named as following rule. First two or four digit Arabic numbers indicate the year when the case is filed. And the following case code composed of Alphabets matches with specific jurisdiction (for example, 'Da' is for private law cases, while 'Du' is for criminal law cases) of the Court. The last serial number is given in the order of case filing of each year.[24]

Statistics

Approximately, the Supreme Court receives about 35,000 ~ 48,000 appeal cases per year from year 2011 to 2020. Yet South Korean Supreme Court has no legal power to select reviewable case by discretion, so it cannot make 'permission to appeal' (Korean: 상고허가). Rather, every cases appealed to the Supreme Court should be decided at least in level of Petty Bench composed of four Supreme Court Justices. This unique institutional structure increases workload of the Supreme Court seriously. For example, while the Supreme Court makes decision on about 35,000 ~ 50,000 cases per year,[25] only 10 ~ 20 cases are decided at the Grand Bench per year.[26] Even former Supreme Court Justice Park Sihwan confessed in his own article after retirement, that much of cases in the Petty Bench are deliberated for only '3 to 4 minutes', which makes role of Research Judges in the Court significantly important.[27]

Whether how to reform this system is still remained in South Korea as controversy among increasing number of Justices, empowering the Court with discretion of 'permission to appeal', or establishing another 'appellate court' (Korean: 상고법원) which only deals with second-rate important final appeal cases abandoned from the Supreme Court. This was one of the reason that former Chief Justice Yang Sung-tae tried to interfere in lower court judgments to get endorsement on foundation of 'appellate court' from former President of South Korea, Park Geun-hye, as Yang opposed to increasing number of Supreme Court Justices as since it can harm previlieges of Justices.[28]

Criticism and Issues

  • The Supreme Court's fame and trust is again gradually deteriorating again in contemporary South Korea, due to social concerns on unfairly lenient attitude toward establishments like Chaebol[29] and embarrassing political struggle inside the hierarchy of ordinary courts such as case-rigging scandal of 15th Chief Justice Yang Sung-tae.[30]
  • Both Constitution and the Court Organization Act have no contingency plan for massive vacancy of the Supreme Court. Thus, when the National Assembly refuses to make consent on appointment of Supreme Court Justices by article 104(1) and (2) of the Constitution, there is no other option and the Supreme Court is paralyzed by vacancy of Justices.[31] While this problem is also happening in the Constitutional Court of Korea, the problem of the Supreme Court is lighter than that of Constitutional Court, because the Supreme Court only requires simple majority for any decision by article 66(1) of the Act. Yet the Constitutional Court should have more at least six Justices to make upholding decision by article 113(1) of the Constitution.

See also

References

  1. "History of Constitutional Adjudication". Constitutional Court of Korea. Retrieved 2022-04-08.
  2. "Moderate, thoughtful Kim Byeong-ro". dongA.com. Retrieved 2022-04-08.
  3. "Yong C. Park, Advance Toward "People's Court" in South Korea, 27 Wash. Int'l L.J. 177 (2017). pp. 181-184". Retrieved 2022-04-08.
  4. "KIM, MARIE SEONG-HAK. "Travails of Judges: Courts and Constitutional Authoritarianism in South Korea." The American Journal of Comparative Law, vol. 63, no. 3, 2015, pp. 612-614, 641". Retrieved 2022-04-08.
  5. "Yoon, Dae-Kyu. "The Constitutional Court System of Korea: The New Road for Constitutional Adjudication" Journal of Korean Law, vol. 1, no. 2, 2011, pp. 7-8". Retrieved 2022-04-05.
  6. "Judicial performance and its determinants: a cross-country perspective". OECD. Retrieved 2022-04-08.
  7. "Constitution of the Republic of Korea". Korea Legislation Research Institute. Retrieved 2022-04-08.
  8. "Court Organization Act". Korea Legislation Research Institute. Retrieved 2022-04-10.
  9. "Former Justices". Supreme Court of Korea. Retrieved 2022-04-08.
  10. "Constitutional Court Act". Korea Legislation Research Institute. Retrieved 2022-04-05.
  11. "Structure of the Federal Labour Court". Federal Labour Court. Retrieved 2022-04-10.
  12. "각급 법원에 배치할 판사의 수에 관한 규칙" (in Korean). www.law.go.kr. Retrieved 2022-04-10.
  13. "판사가 아닌 재판연구관에 관한 규칙" (in Korean). www.law.go.kr. Retrieved 2022-04-10.
  14. "National Court Administration, Organizational Chart". Supreme Court of Korea. Retrieved 2022-04-10.
  15. "50 Years of the JRTI". Judicial Research and Training Institute. Retrieved 2022-04-10.
  16. "Organization". Institute of Justice. Retrieved 2022-04-10.
  17. "Organization Chart". Judicial Policy Research Institute. Retrieved 2022-04-10.
  18. "History, Building". Supreme Court of Korea. Retrieved 2022-04-10.
  19. "대법원 선고" (in Korean). 대한민국 대법원. Retrieved 2022-04-10.
  20. "Public Official Election Act". Korea Legislation Research Institute. Retrieved 2022-04-10.
  21. "Discipline Of Judges Act". Korea Legislation Research Institute. Retrieved 2022-04-10.
  22. "Exercise of Jurisdiction". Supreme Court of Korea. Retrieved 2022-04-10.
  23. For example of presiding Justice and Justice in charge for the Petty Bench and the Grand Bench, see decisions of the Court translated in English at "All Supreme Court Decisions". Supreme Court Library of Korea. Retrieved 2022-04-10.
  24. "Guide, Supreme Court Decisions". Supreme Court Library of Korea. Retrieved 2022-04-10.
  25. "사법연감(통계), 2020년 사건추이(누년비교), p.674". 대한민국 법원, 대국민서비스. Retrieved 2022-04-10.
  26. "전원합의체 선고 53%가 만장일치 ... 획일화 길 걷는 대법원" (in Korean). JoongAng Ilbo. 2014-02-02. Retrieved 2022-04-10.
  27. "PARK SIHWAN. (2016). The Actual Appearance and Problems of the Korean Supreme Court Appeal Case Processing. Democratic Legal Studies, 62. pp.307, 316-317" (in Korean). Retrieved 2022-04-10.
  28. "Why is 'appellate court' at center of judiciary scandal?". The Korea Herald. 2018-08-02. Retrieved 2022-04-10.
  29. "A South Korean Ex-Chief Justice Faces Case-Rigging Accusations". The New York Times. 2019-01-11. Retrieved 2022-04-08.
  30. "South Korean Supreme Court Caught in Park Geun-hye Scandal". The Diplomat. 2018-09-27. Retrieved 2022-04-08.
  31. "Assembly deadlock brings Supreme Court to halt". Korea JoongAng Daily. 2012-07-17. Retrieved 2022-04-08.
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