Decision of the Korean Constitutional Court of Nonconformity of Statute with the Constitution and the Subsequent National Assembly Legislative Process in Korea’s Constitutional Democracy

Abstract

The decision of nonconformity of the statute with the Constitution is a type of decision rendered by the Korean Constitutional Court, notwithstanding the silence of the Constitutional Court Act of Korea pertaining to such type of decision or the ground therefor. The Constitutional Court, by way of nonconformity decision, holds that the statutory provision at issue is not in conformity with the Constitution, without directly holding that the statutory provision is outright unconstitutional to become null and void upon issuance of the decision, out of deference to the lawmaking authority of National Assembly and, in certain situations, for the stability of law in its application. The holding of nonconformity decision of the Korean Constitutional Court varies in that the Constitutional Court either simply declares the nonconformity of the statutory provision with the Constitution, or renders the statutory provision at issue to be tentatively applicable through a designated date then lose effect, or yet stays the application of the statutory provision through a designated date with the possibility of its losing effect on a specific date should National Assembly fail to revise the statute by the time limit. The Korean Constitutional Court’s nonconformity decision likewise urges National Assembly to revise the relevant statute in accordance with its holding and the stated grounds therefor often with designated time limit, shifting the burden to timely remove the declared unconstitutionality of the statute onto National Assembly. Whether and to which extent such recommendation or urging by the Constitutional Court to revise the statute binds National Assembly has yet to be determined and established, with such ensuing normative and institutional issues as the nonconformity decision’s binding effect and retroactivity. A particularly complex challenge is observed in the case of National Assembly’s failure to meet the designated time limit, although National Assembly has revised the relevant statutes in over 95% of such instances through the end of the session of the 20th National Assembly (2016-2020). The Korean Constitutional Court tends to render nonconformity decision primarily for the violation of constitutional principle of equality and for the failure to satisfy the individual constitutional provision’s mandate or delegation to enact a statute, when the Constitutional Court deems that nonconformity decision is appropriate considering the totality of the relevant circumstances from the balancing point of view that the immediate nullification and removal of the statutory provision might cause “legal vacuum” leading to instability and undue confusion among relevant parties and the public, or that a decision of simple unconstitutionality might not appropriately or effectively remedy the unconstitutionality due to the unclear distinction between constitutionality and unconstitutionality. The Constitutional Court in nonconformity decision defers to National Assembly’s lawmaking authority for further legislative alternatives in removing the unconstitutionality. The normative legislative function assumed by the Constitutional Court in its adjudication over the constitutionality of statute requests in turn that the Constitutional Court and its adjudication secure democratic legitimacy as well as constitutional legitimacy in its organization, function, procedure and substantive outcome. The Constitutional Court and National Assembly implement the Constitution of Korea as such in Korea’s constitutional democracy by assuming respective functions in larger legislative process providing for and regulating the rights and obligations of the constituents. As such, nonconformity decision concerns the issue of and for the separation of powers in Korea’s Constitution and constitutional democracy. In this vein, suggestions can be made both on normative and institutional planes to substantiate the “constitutional dialogues” or interactions between Korea’s constitutional institutions for more substantiated and coordinated implementation of the Constitution along this process. Certain core relevant concepts and procedures such as the binding effect of nonconformity decision, the retroactive effect of nonconformity decision, the effect of the statute held to be not in conformity with the Constitution should National Assembly fail to meet the time limit for legislative revision as designated by the Constitutional Court in nonconformity decision, and fine-tuning of the ensuing National Assembly legislative process for statutory revision recommended by the Constitutional Court’s nonconformity decision to introduce, for example, a separate calendar with automatically and regularly held expedited proceedings should be analyzed and integrated into the process of institutional interactions in a concerted way, for the implementation of the Constitution of Korea ultimately for more substantiated protection of constitutional rights.