Constitutional Fact-Finding in Flux: Reforming Korean Constitutional Court Through German Comparative Insights

Abstract

According to Article 40 of the Constitutional Court Act, unless stated otherwise, the Civil Procedure Law applies to the Constitutional Court’s procedures, provided it does not conflict with the nature of constitutional adjudication. For impeachment trials, the Criminal Procedure Law is applied, while for competence disputes and constitutional complaints, the Administrative Procedural Law is additionally used. However, the current legislative framework fails to fully recognize the unique characteristics of constitutional adjudication, leading to fact-finding issues such as underutilized adversarialism and ineffective evidence investigation methods in evidence collection phase, as well as excessive judicial discretion without clear statutory constraint, well-argued reasoning and sufficient court debate in the evidence evaluation stage. This study aims to uncover issues in the fact-finding process of the Constitutional Court of Korea through case analysis and seeks to identify measures to enhance the accuracy of fact-finding by referring to the German experience, which shares the same constitutional institution setting and evidence-collection principle. As one of the most authoritative constitutional institutions in Asia, addressing these issues will not only contribute to the Korean Constitutional Court’s self-improvement but also offer insights for other democratic regions in Asia with similar cultural backgrounds and histories.