Some Interesting Recent Cases

I hope to say more about these cases. The summaries below are for the most part drawn from the Court's own summaries in English.

• Prohibition of unlicensed medical practice is constitutionally permitted (2008Hun-Ka19, 7/29/2010). (Note: The decision itself is unremarkable, but what is interesting is how close the Court came to ruling the licensing requirements to be unconstitutional. The decision was 5-4 in favor of a finding of unconstitutionality; six votes are required to find a statute to be unconstitutional. It is unclear, but there must be some concern that the licensing requirements are too restrictive. I would welcome any comments on this.)

• Law criminalizing inducing a female to consent to sexual intercourse through a false promise of marriage (or "through other fraudulent means") is unconstitutional (2008Hun-Ba58, 11/26/2009).

• Death penalty is constitutionally permitted (2008Hun-Ba58, 11/26/2009).

• Vicarious criminal liability is unconstitutional (2008Hun-Ka14, 7/30/2009).

• The Constitutional ban on wars of aggression does not give rise to enforceable individual rights (2007 Hun-Ma 369, 5/28/2009). (Note: This decision looks interesting, but it is unclear from the summary what the Court actually held.)

• Obscenity is constitutionally protected speech but its restriction is constitutionally permitted. This decision reverses a previous decision that afforded no protection to obscene materials (2006Hun-Ba109, 5/28/2009).

• Penalty for receiving bribery for elections (when the penalty is set by the formula: penalty = amount received x 50) is unconstitutionally excessive (2007 Hun-Ka 22, 3/26/2009).

• Limitation on liability for traffic injuries caused by drivers who have satisfied certain conditions (such as having a liability insurance) is unconstitutional (2005Hun-Ma764, 2/26/2009).

• Additional punishment for repeat offenders is unconstitutionally excessive because the penalty provision in question is not sufficiently tailored to reflect the seriousness of offenses (2007Hun-Ka10, 12/26/2008).

• Criminalization of adultery is constitutionally permitted (2007Hun-Ka17.21, 10/30/2008). (Note: This is the fourth time the Court has upheld the constitutionality of the law prohibiting adultery. This time, five justices voted in favor of striking down the law as unconstitutional, but six votes are needed to invalidate a statute on constitutional grounds. Background of this case here and here.)

• Law that allows only blind persons to work as masseurs is constitutionally permitted (2006Hun-Ma1098, 10/30/2008). (Note: Related stories here and here).

• Law prohibiting doctors from revealing the sex of fetuses is unconstitutional (2004Hun-Ma1010, 7/31/2008).

Election Law, Roh, and the Constitutional Court - Here we go again

We've been here before. President Roh takes sides about the upcoming election, the election commission intervenes on the basis that he violated the duty of "political neutrality" during elections, and now Roh wants the Constitutional Court to rule on the constitutionality of the law (see here). This is the legal issue that got Roh in impeachment troubles a few years ago (see my previous posts here and here), and it looks like they are rehashing the debate.

Fascinating to observe. The "political neutrality" requirement, to begin with, is a bit startling (imagine the Federal Election Committee telling George W. Bush he cannot campaign for Republican candidates). The public reaction, too, is of interest -- accusations of "insubordination" and "disrespect" for the rule of law are common, and his Constitutional petition, too, seems to be derided by many for being, well, not very presidential.

Capital Move Round Two: Constitutional Court Approves This Time

This is old news by now. The administrative town plan is upheld. Stories here and here and here (in Korean). My comments (hopefully) soon.

Capital Move Round Two: the Court as an Urban Planner

The Korea Times reports here that a petition challenging the latest plan by the government to establish an "administrative town" has been filed.

Brief background: In late 2002, President Roh Moo-hyun, then a presidential candidate, made a campaign promise that, if elected, he would move the capital of Korea out of Seoul. In late 2003, the President proposed a bill to move the capital, and it passed by an overwhelming margin (167 yes, 13 no).

As the government started implementing the plan in 2004, a constitutional challenge against the plan was filed, with the petitioners arguing that under Article 72 of the Constitution the President was required to hold a national referendum on the capital move question. The legal challenge was thought to be a long shot, as the text of Article 72, "The President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary," appeared to
create the option of calling referendum but not require it. The phrase, "if he deems it necessary," in particular seemed to leave the decision whether to call referendum up to the President. If the petitioners had anything going for them, it was the vague sense that the amount of public deliberation on this issue had seemed disproportionately scant, considering the momentousness of the project the government was about to embark on.

In October, to surprise of many, the Constitutional Court ruled against the government and held the plan to move the capital unconstitutional. The Court's legal analysis left many people baffled. Instead of siding with the petitioners that the President was required to hold a national referendum (which itself would have been a stretch), the Court went a step further and held that there is an unwritten constitutional provision that designates Seoul as the capital of Korea, and that it is therefore unconstitutional to change the capital without formally amending the Constitution (which requires two-thirds in favor in the National Assembly plus a national referendum vote in favor of the proposed amendment).

The concept of customary constitutional law had not been invoked by the Court before, so it took some explaining. The Court stated that even though the nation has a written Constitution, the text of the Constitution does not exhaust the Constitution, as there is also an unwritten Constitution, or customary constitutional law, that has the same binding force as the written provisions of the Constitution. Given that it is not written down, how does one know what's in the unwritten Constitution? The Court explained that it would have to be determined on a case-by-case basis according to the following factors: a customary constitutional law has to be on a fundamental issue -- something so fundamental that it need not be written down; there must be a custom that has been in existence for a long period of time; the custom must not be temporary; the custom cannot be vague; and there has to be a national consensus on the custom. The Court then declared that the idea that Seoul is the capital of Korea is so deep-rooted and fundamental to the national identity that it qualifies as an unwritten constitutional law that cannot change unless the Constitution is amended.

After recovering from the initial shock, the government came up with an alternative strategy, and a new, revised bill was passed in March. The new plan proposes to move some, not all, of the governmental offices to the Kongju-Yongi area. The four most important bodies -- Chong Wa Dae, the Supreme Court, the Constitutional Court, and the National Assembly -- and a few other agencies will stay in Seoul, but the rest will be moved.

The question, then, is whether the new plan, too, will be found by the Constitutional Court to be an attempt to move the capital of Korea without a constitutional amendment. It seems to me that the new plan was designed precisely to avoid constitutional trouble. In the original ruling of unconstitutionality by the Court in October, the Court discussed the concept of the capital city. The Court explained that the capital city must be perceived to be the seat of the government, and, this means that a city must have, at least, the National Assembly and the President for it to be the capital. This particular discussion in the Court's opinion suggests, at least on its face, that the current plan does not violate the Constitution -- as, according to the Court's own definition of the capital, the capital stays in Seoul. This part of the ruling will likely be a key part of the government's case.

Whatever happens in the case, it appears to me that the Court will have to come up with a more detailed theory of capital cities (something that, say, deals with the argument that there should not be more than one capital city, or that a capital city should not be split into multiple pieces) in order to decide this case. Plus, given that the Court has tied the idea of Seoul as the capital to the nation's history, custom, and tradition, the Court will have to say something about how Koreans themselves have understood the concept of a capital city.

In short, because of the way the inquiry has been framed by the Court, the Court now has to confront the question, "What is a capital city (according to Koreans)"? Bring on the urban theorists and architectural historians.

Constitutional Court Justice Search

According to this story (in Korean), the Uri Party is looking outside the public sector for the new Constitutional Court justice to replace Sang-Kyung Lee, who resigned several days ago. As I discussed previously, the National Assembly gets to select three Constitutional Court justices, the President another three, and the Chief Justice of the Supreme Court the remaining three. And as to those to be chosen by the National Assembly, there is an informal norm according to which the major parties take turns in picking justices. This particular vacant slot will be filled by someone chosen by the Uri Party. The story quotes a Uri Party member who is an official of the Legislation and Judiciary Committee of the National Assembly as saying that the party wants to pick a justice with a reformist outlook. The official criticized the current justices for being too conservative and stated that the party plans to select someone from outside the government to add a reformist voice to the Court.

Constitutional Court Justice Resigns; Conscience and Judging

Justice Sang-Kyung Lee (official bios of justices can be found here) resigned abruptly from his post today (details here, here, and here). He was relatively new to the job, as he was appointed a little over a year ago (in February 2004), and was the second most junior member on the Court. (The most junior member is Justice Kong-hyun Lee, who was appointed in March 2005 to replace Justice Yung-il Kim when his term expired.) Justice Lee was chosen for the post by the National Assembly, and he still had about five years remaining in his term. (As I discussed previously, the National Assembly gets to select three Constitutional Court justices, the President another three, and the Chief Justice of the Supreme Court the remaining three, and justices serve for six-year terms.)

His decision to resign can be traced to this KBS story from May 25, which reported that Lee has been underreporting his income from renting his property his Seoul on his tax returns in the last ten years. According to the story, Lee conceded to the reporter that the allegations were true. In a statement he released today (which is quoted here and summarized here), he expressed remorse, while stating that he tried to do his best in following "the Constitution and conscience" in doing his job as a justice, specifically mentioning the impeachment case and the capital move case.

I don't have much to say about this resignation, but I'll use it as an opportunity to discuss something that I've found interesting in the Korean Constitution. In his statement announcing his resignation, Lee said that he followed his "conscience" (yangsim) as well as the "Constitution" while performing his duties as a constitutional court justice. The "Constitution and conscience" phrase refers to Article 103 of the Korean Constitution, which states, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act."

What's interesting about this from the American perspective is this. Generally, in the U.S., the term "conscience" comes up in connection with judicial decisionmaking when there is a conflict between what the law requires and what the judge thinks is a just outcome. It is commonly argued that a judge is supposed to follow the law, not his conscience, and if the judge goes with his conscience when there is a conflict, it is argued, the judge is abusing his power. Judges are of course supposed to protect individuals' freedom of conscience, but they are not supposed to rule by their conscience. This is why Justice Scalia begins this talk on the relationship between his Catholicism and his job as a Supreme Court justice by stating, "Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court."

This "conscience" can be either liberal or conservative, so depending on which conscience is doing the work, your reaction may vary. For example, Roy Moore, the former Chief Justice of Alabama Supreme Court who was removed from office for refusing to move a Ten Commandments monument from the court building, repeatedly cited his conscience to explain his conduct. On the liberal side, appeals to "conscience" are often made these days in sentencing contexts when a punishment that the law requires is thought to be excessively harsh (some examples here, here, here, and here). Of course, speaking of conscience, one cannot forget the notorious "shocks the conscience" test in the U.S. Supreme Court's substantive due process jurisprudence. The "test," while undoubtedly still valid as a constitutional doctrine, is always on the defensive because of its perceived subjectivity and the nagging suspicion that "conscience" is where judges go when they don't like a particular legal outcome.

So from the American perspective, it is, to say the least, curious that the Korean Constitution embraces the concept of conscience in judicial decisionmaking and even requires that judges "rule . . . . according to their conscience."

What explains this? A few hypotheses. First, it may be that the key concept in the sentence, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act," is judicial independence, and the term "conscience" should be understood with that in mind. In other words, "conscience" may not be necessarily referring to a judge's individual morality, but a sense of duty that the Court should feel that it owes to the public to uphold the rule of law, even if there are political pressures to do otherwise.

Second, what worries Americans about "conscience" is that we tend to think that one's conscience is not only a private matter but also may be radically different from another's, which is why "freedom of conscience" is frequently linked with "freedom of religion" and why a need to protect it from pressures to conform to other people's beliefs is thought to arise. This is why we get nervous about a judge following his "conscience." We tend to think that the source and validity of an individual's deepest moral beliefs may remain opaque to us, which means that a judge's ruling by his conscience appears to be in tension with the democratic values of transparency and accountability, which in turn demand that public actors use public reason to defend how they exercise power. It seems to me that, for obvious reasons, the kind of anxiety stemming from a recognition of cultural pluralism is not present in the Korean society, at least not to the same degree. Hence the lack of worry about judges' following their conscience in Korea.

Third, deeply related to the second point: It may be that within the Korean legal culture it is unnatural to imagine a situation in which what the law requires conflicts with what the conscience dictates. The school of jurisprudence that is traditionally associated with this outlook is natural law. I certainly do not want to claim, without further reflection, that Koreans subscribe to the natural law theory, but it is hard not to notice a certain natural law "tone" in reading Korean legal opinions. I'll just mention one (big) example here: A concept that is frequently invoked in Korean constitutional law is the concept of "constitutional order," which played an important role in the two most famous cases the Court has recently decided, the presidential impeachment case and the capital move case. The phrase "constitutional order" shows up in the Korean Constitution, but as an apiration in the Preamble, not as a legal guarantee (similar to the way the U.S. Constitution seeks to "establish Justice, . . . promote the general Welfare, and secure the Blessings of Liberty" according to its Preamble). Nevertheless, the Court frequently talks as if the "constitutional order" is a deep normative framework that underlies, imbues, and supplements the Constitution, and is available both as an aid to understand the written Constitution and as a law to be directly enforced. Because the natural law-positivism debate has produced multiple versions of these theories with increasing complexity over the years, this is a thesis that will need to be thought through and defended with some care, which I will not attempt here.

"Truth and Reconciliation" in Korea

A lot of activities in Korea to look into modern Korean history: reports here and here and here and here.

More on Class Actions

It turns out Korea is not the only country that is about to experience class action lawsuits for the first time (see my previous post here). France, too, is planning to introduce the format.

(Thanks to How Appealing.)

Jury Trials in Japan

Professor Robert Bloom at Boston College Law School posted "Jury Trials in Japan." Professor Bloom discusses the current efforts in Japan to institute the jury system and expresses some skepticism about how effective the jury system will turn out to be in Japan. Japan and Korea are both in the process of introducing two major legal reforms. One is the jury trial, which I mused about here, and the other is the law school system (some background information here and here and here). The idea behind both proposals, in both Japan and Korea, seems to be to enhance the legitimacy of the legal system through democratization by opening up both the legal profession and the process of legal decisionmaking to more people.

Death Penalty Debate Continues in Korea

Here's the latest: Human Rights Panel to Advise Repeal of Death Penalty and Justice Minister Opposes Abolition of Death Penalty.

"North Korea" as a Legal Concept?

Here is an interesting, brief story (in Korean) about a legal argument in a contract dispute. The basic question at issue appears to be this: Is there a contract if a party to the contract was so inexperienced that the party did not understand the nature of the contract he or she was entering into? The particular twist in this case is that the party challenging the validity of the contract is a defector from North Korea. He is claiming that because of his unfamiliarity with the legal system (said unfamiliarity being due to his status as a recent defector from the North), he did not understand the contract that was about to bind him. The Court did not buy his argument.

This has nothing to do with Korean Constitutional Law at the moment, but stories like this are interesting because they foreshadow a much larger issue that the Korean legal system will have to confront as the two Koreas move towards reunification: "North Korea" as a significant legal concept/category.

Plea Bargaining

Another interesting development in Korean criminal procedure -- plea bargain. According to this report, prosecutors have expressed some support for the idea of instituting plea bargaining and are studying various options. Here is an editorial criticizing the idea.

Four-Year Terms for President?

According to this story and this story, the idea of amending the Constitution so that the President can serve for up to two four-year terms (as opposed to the current system in which the President can serve only for a single five-year term) is picking up steam.

Impeachment Article

The latest draft of my article on the Roh impeachment, "Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective," which will be published by the American Journal of Comparative Law later this year, is now available for download here. Here is the abstract:

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh’s presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court’s decision, this Article discusses the significance of the ruling for three broad questions of comparative constitutional law: judicial decisionmaking as a distinct form of constitutional interpretation; the dual nature – legal and political – of the impeachment process and the proper role of the courts in it; and historical, political, and institutional factors that lead to the doctrine of judicial supremacy. Comparisons to the U.S. model of presidential impeachment are made throughout the Article.

Comments are welcome.

First Class Action Lawsuit in Korea

The Korea Times reports here on the upcoming lawsuit. It sounds like a securities case. BusinessWeek profiled the plaintiffs' lawyer here two years ago.

Jury System in Korea

South Korea is experimenting with the jury system. According to this story, juries will start participating in certain types of criminal cases on a trial basis starting 2007. The system will be reviewed in 2012, at which point the Supreme Court will consider instituting it permanently. During the test period, juries' decisions will not be binding and will only be advisory.

(Some background: The Korean Constitution contains a number of procedural protections for criminal defendants such as due process, the right to counsel, the right not to incriminate oneself, and prohibitions of warrantless searches or arrests (with some exceptions) and of double jeopardy and ex post facto prosecutions. There is even an explicit prohibition of "unfavorable treatment on account of an act not of his own doing but committed by a relative." The Constitution also has a general guarantee of "human dignity.")

Given the current controversy over the precise contours of the right to jury trial in the U.S., it is interesting that the jury system in Korea is being promoted as a democratic measure to serve as a check on arbitrary decisionmaking by judges and to build public confidence in the criminal justice system and the rule of law. I was in Korea during the O.J. Simpson trial, and I remember encountering some skepticism about the jury system among some Koreans. And I know that a large segment of the population there remains skeptical. In any event, this is something to be watched closely in the next several years.

But for now, a question: Is there a constitutional issue here? Article 27 of the Constitution provides, "All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act." Could someone bring a challenge against the jury system on the basis that he or she has a right to be tried by a judge under this provision? The current arrangement appears to be partly designed to avoid this problem; a jury can participate in a particular case only with the defendant's consent. In other words, if what the Korean government does is simply add an option to be tried by a jury, as opposed to take away the option of being tried by a judge, then there may be no constitutional problem.

No Government Assistance for Criminal Defectors?

Chosun reports that the South Korean government has a plan not to give financial and employment assistance to defectors from North Korea if they carry criminal records. Marmot derides this plan here, which is where I first read about this. According to the story, "North Koreans with inappropriate backgrounds including terrorists, drug dealers and those carrying criminal records involving rape and murder" will not be eligible for governmental assistance to start new lives in South Korea. The story further reports that "the government will dispatch investigators to China and other third countries that North Korean defectors make stopover before settling in South Korea and screen them in advance and examine their status."

I am interested in finding more about this plan, which I find very puzzling for a number of reasons. Do criminal records from the defectors' days in North Korea count? And how does the government plan to find such records? Given that South Korea has no reason to trust North Korea's legal system and its commitment to the rule of law values (unless the South Korean government knows something I don't) - e.g., both North Korea's substantive criminal law and procedural protections, the very idea of "criminal background" seems absurd to me when it is applied to defectors from North Korea. Perhaps the government is referring only to criminal activities undertaken by defectors in China or other countries? In that case, they may be serving time in those countries anyway (if not sent back to North Korea altogether), so I am not even sure how many people are supposed to be affected by this. Also, is the idea to bring them into South Korea but give them no financial assistance? Leaving them with no legitimate means of survival seems to me to be an excellent way to encourage criminal activities. Or is the idea to screen them out so they do not enter South Korea in the first place? Plus, if some of these people are indeed "terrorists," financial and employment assistance should be the least of South Korea's worries about them.

Many questions, and I would like to find out more. Chosun must be leaving a lot of stuff out because it just doesn't make a lot of sense.

Impeachment of Roh Moo-hyun

2004 was an important year for the Constitutional Court, as it intervened and served as the final arbiter in two highly contested political conflicts between the legislature and the president. First, in May, two months after President Roh Moo-hyun was impeached, the Court thwarted the National Assembly’s attempt to remove Roh and reinstated him as the president. Second, in October, the Court blocked the government’s plan to move the capital of Korea on grounds that the relocation plan violated the Constitution. This post is about the impeachment case.

Roh’s impeachment and subsequent reinstatement (see here for a collection of newspaper articles about the case) is a landmark event not only in modern Korean history but also in the history of modern constitutionalism generally, given that it marked the first time that a president impeached by a legislature was reinstated by a judicial body. The case is especially interesting because the Court directly engaged with merits of the legislative judgment to impeach the president.

The National Assembly impeached Roh on multiple grounds, but the claims boiled down to the following three. First, the Assembly accused Roh that his open support for his political party in the upcoming April elections was in violation of the requirement that public officials remain "politically neutral" and refrain from influencing elections. Second, the Assembly alleged that Roh accepted bribes and illegal campaign funds during his presidential election. Third, the Assembly accused Roh of general incompetence and maladministration. The Court agreed with the first claim (political neutrality) but dismissed the rest (corruption and maladministration). However, the Court ultimately held that Roh's failure to remain politically neutral was not serious enough a wrongdoing to justify removing him from power.

The Court could have reached the same result (i.e., reinstating Roh) in a number of ways. Option 1 was to find a procedural defect in the way in which the impeachment vote had taken place. Given the chaos surrounding the vote (see here), this was not a far-fetched scenario. Option 2 was to find that Roh did not violate any laws (The Constitution limits grounds for impeachment to violations of the law). This was a plausible route, too, given that the law Roh was accused of violating could have been limited, given Roh's special position as the president and the obvious freedom of expression concerns it raised. (In fact, Roh protested that in advanced democracies like the U.S., the president openly campaigns for candidates from his party -- he cited an episode of the West Wing to make this point.) Option 3 was to find that there was indeed a legal violation and that there was nothing wrong with the procedure by which Roh was impeached but to disagree with the National Assembly’s judgment that Roh’s wrongdoing rendered him unfit for office.

The Court went with Option 3, holding that even though Roh broke the law, his wrongdoing was not serious enough to warrant his removal from office. From the American perspective at least, it seems extraordinary to have a system in which a group of unelected judges can overturn the judgment of a democratically representative body that a president should be removed from power on the ground that the Court simply disagrees with the legislature on the seriousness of the wrongdoing. After all, Alexander Hamilton wrote in the Federalist Papers, "The awful discretion which a court of impeachment must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

One crucial fact to keep in mind here is that the public was overwhelmingly against the impeachment. In fact, a month after the impeachment motion passed -- and a month before the Court came down with its decision -- the General Elections took place, and the parties that supported the impeachment lost seats and their supermajority status, and the very party that Roh was impeached for supporting came out victorious, winning the majority of seats.

But that does not explain why the Court took the option that was more aggressive than was necessary. Perhaps the Court felt the need to acknowledge the ways in which Roh behaved improperly? At least to communicate that Roh was not acting "presidential" enough?

There are many sides to this case. I discuss some of the issues the case raises in an article to be published in the Spring 2005 issue of the American Journal of Comparative Law, and here is the current abstract to the piece.

Judicial Terms on the Constitutional Court

A feature of the Korean Constitutional Court that is striking from the American perspective is the renewable six-year term. In the United States, federal judges serve for life (unless they voluntarily retire early or are removed by impeachment). The Korean model is different from the U.S. model but is not unique. In fact, it’s the U.S. model of life tenure that is unique, not the other way around.

Over the years, an interesting informal norm has developed within the Constitutional Court. Even though the justices’ terms are renewable, only one justice (out of twenty-eight who have served or are still serving) has sought to reappointed, and he (Justice Kim Moon-hee) served for twelve years (between 1988 and 2000). My understanding, based on conversations with lawyers in Korea, is that it is considered uncouth to occupy one’s seat for more than one term. There are a lot of qualified people who can serve as justices of the Constitutional Court, and the prevailing sentiment is that once a justice serves his or her full term, he or she should give up the seat so that 1) the next generation of justices can be appointed and 2) the next appointing body (whether it be President, Chief Justice of the Supreme Court, or the National Assembly) is given opportunities to make new appointments. (Of course, the mandatory retirement age makes the issue of reappointment moot for many, too.)

This phenomenon is an intriguing mixture of egalitarianism (Constitutional Court seats should be distributed as widely as possible), youthism (the old should move out of the way for the young), hierarchy (once the old steps aside, the next-in-line steps in), and (perhaps just a faint) whiff of cronyism (appointments move in tandem with shifts in power). (The Korean culture is frequently described as “Confucian” and “hierarchical”; less observed is the way in which the hierarchical elements of the culture coexist and interact with the country’s deep egalitarian instincts.)

One consequence of the limited judicial terms is that there are few signs of individual judicial philosophies or sustained agendas to reshape the law in the Korean Constitutional Court. Americans tend to speak of constitutional law in personal terms (“Scalia-this,” “Rehquist-that”). Rehnquist has been on the Court for over thirty years and Scalia for almost twenty years. With life tenure, American Supreme Court justices can bring to the Court long-term projects to put their personal stamps on the law. Korean Constitutional Court justices do not have that kind of luxury. A more complicated question is whether this set of arrangements is sufficient to guarantee "judicial independence."

Basic Features of the Constitutional Court of Korea

The Constitutional Court of Korea was established in 1988, as part of South Korea’s 1987 democratic reforms. The Court was largely modeled on the Federal Constitutional Court of Germany. Some basic features:

- Number of Justices: Nine

- Appointment: Three are appointed by the President, three are appointed by the National Assembly, and three are appointed by the Chief Justice of the Supreme Court.

- Term: Each justice serves for a six-year term, which is renewable. There is a mandatory retirement age of sixty-five, except for the President of the Constitutional Court, who can serve until he or she is seventy.

- Jurisdiction: The Court has jurisdiction over five areas: 1) review of constitutionality of statutes, 2) impeachments, 3) dissolution of political parties, 4) jurisdictional disputes among governmental bodies, and 5) constitutional petitions.

In this blog, I will be writing about Korean Constitutional Law and the Constitutional Court, with frequent comparisons to constitutional laws of the U.S. and other countries. 2004 was a big year for the Court, and I will explain why in the next several posts.