In an October address at Harvard Law School, Justice Yong-Joon Kim, President of the Constitutional Court of Republic of Korea, describes the function of a separate Constitutional Court (unlike the American Supreme Court, which functions both as a court for constitutional matters and a court of final appeal) in promoting consistent application of the constitution in states "still struggling to cast aside the historical baggage of authoritarianism."

His Honorable Justice Yong-joon Kim is the President of the Constitutional Court of the Republic of Korea. Mr. Kim received his L.L.B. degree from Seoul National University and his L.L.M. degree from the Graduate School of Seoul National University in 1959 and 1967 respectively. Justice Kim began his illustrious legal career in 1960 when he was appointed a judge in the Taegu District Court. He subsequently held a variety of important positions such as Chief Judge of the Seoul Family Court and Justice of the Supreme Court until he assumed the presidency of the Constitutional Court in 1994. This article is an edited version of a speech given by Mr. Kim at Harvard Law School on 4^th October, 1999.

This afternoon, I shall speak primarily on the experience of the Constitutional Court of Korea during the past eleven years of its existence. By so doing, I hope to bring out some of the differences as well as commonalities between the Korean system of constitutional adjudication and the American system of judicial review. But before turning to the Korean system, perhaps I should mention that there are generally two types of constitutional adjudication systems in the world. One is the decentralized system, such as the one in the United States, and the other the more centralized system found in many European countries.

I understand that the U.S. system of adjudicating the constitutionality of a legislation is not based on the written constitution, but is derived from a judicial decision made in 1803 by the U.S. Supreme Court in the case Marbury v. Madison. I am also told that in the United States, constitutional issues can be adjudicated in ordinary courts. By contrast, in many European countries and other countries influenced by the European legal systems, including Korea, the power to adjudicate constitutional issues is vested in a specially created constitutional court in accordance with the expressed provisions of a written constitution.

National Assembly in Seoul

From the American perspective, it may seem more natural for the ordinary courts to assume, through their trial procedures, the role of preventing other governmental agencies from performing unconstitutional acts and, thereby, of protecting the freedom of the citizens. We may then ask why, in the case of Europe and elsewhere, the system of an independent constitutional court was adopted. I am sure we can identify many theoretical reasons for the phenomenon, but let me mention one historical factor. I am inclined to believe that it was due in large part to the bitter experience of having totalitarian regimes that regularly abused and disregarded their own constitutions. Thus after World War II, there was a widespread desire for an independent constitutional court to safeguard the constitution and basic human rights. I have no doubt that the U.S. system has its own merits, and I believe that constitutional adjudication system should vary according to the circumstances of each country. However, for those countries lacking a tradition of judicial review, and especially those still struggling to cast aside their historical baggage of authoritarianism, the establishment of an independent constitutional court will help to promote specialized adjudication of constitutional issues as well as uniformity and efficiency in the application of constitutional norms.

The experience of the Constitutional Court of Korea is also in line with this general trend in recent world history. Korea has a long history of close to five thousand years, but it was only in 1948 that a modern constitution was adopted. Since then, Korea has had a republican form of government and a constitution that protects the basic rights of the citizens based upon the principles of democracy and of the rule of law. Until recently, however, the Korean Constitution had been unable to perform effectively its protective functions. During the forty years between 1948 and September 1988, when the current Constitutional Court was set up, Korea had had only five cases in which some law or regulation was held to be unconstitutional. Starting in 1987, Korea was engulfed by a strong democracy movement. The people demanded a direct, popular election for the President. Yet, that was not the only thing on the people’s agenda—they genuinely longed for a society in which human rights, freedom and democracy would be living realities. Hence, it seemed natural that the aspirations of the people began to focus on establishing a new mechanism for constitutional adjudication.

At the beginning, there were some debates as to which organ should be given this responsibility. The newly elected government, however, ultimately decided that a new Constitutional Court should be set up to assume such responsibility. It was thought that in order to promote the protection of basic rights, we should adopt a system of constitutional petition, and for that purpose, a system similar to that of Germany was considered best. This decision was also supported by the undesirability of involving the ordinary courts in cases of political nature. The most significant change that has taken place since the Constitutional Court of Korea was established is the transformation of the constitution into a "living" law for the society. During the eleven years of its operation, the Constitutional Court has adjudicated about 4,500 cases. In about 200 of them, the Court either declared a law unconstitutional or granted a constitutional petition.

From a political standpoint, it can be said that the Constitutional Court has accelerated the process of democratization in Korea by doing away with the authoritarian system of past regimes. The legal system, which had been outside the control of the constitution, is now being reformed one step at a time. In particular, the unconstitutionality of many laws passed by the legislating bodies under past regimes has been confirmed.

I will mention two representative cases in this connection. First, in 1990, the Constitutional Court declared that the National Security Act was constitutional on a conditional basis. The National Security Act was enacted to ensure the security of South Korea and the lives and freedom of its people against the hostile and destructive activities of North Korea. However, the constitutionality of this Act had long been questioned because it contained some ambiguous provisions that could be abused as tools for restraining political dissidents. By declaring this law, which had been held as a prime example of the oppressive legislation of past authoritarian regimes, partially unconstitutional (or conditionally constitutional), the Constitutional Court did away with the evil practice of justifying civil rights violations on the grounds of so-called "circumstantial necessity." The second case is the decision handed down in 1995 in response to a constitutional petition, in which the Court held that acts committed during a military coup d’etat, regardless of its success, can properly be subjected to criminal punishment. The Constitutional Court thus declared unconstitutional the usurpation of political power by a group of insurgent soldiers following the assassination of President Pak Chung-hee in October 1979.

In the area of social customs, the Constitutional Court has been instrumental in eradicating a number of unjust practices that had been defended in the name of "tradition." In 1997, the Court declared unconstitutional the provisions in the Civil Code which prohibited marriages between people with the same surname along the same ancestral line. Influenced by the longstanding tradition of Confucianism, Korea until then not only outlawed marriages between close relatives, but also between any two persons bearing the same surname along the same ancestral line (this is referred to in Korean as "Dongsung Dongbon"). There was no exception regardless of how remotely they were related in terms of the actual degree of kinship.

Since surnames in Korea are determined according to the paternal line, this marriage prohibition applied only to persons of the same paternal line. This contradicted the practice that allowed one to marry any of one’s maternal relatives. In Korea, a married woman retains her maiden name. In this respect, the tradition of non-marriage for the same surname along the same ancestral line had been criticized as an irrational system based upon a patriarchal world-view.

There had been several earlier attempts to amend or repeal this provision of the Civil Code, but all were defeated as a result of the strong opposition from traditional followers of Confucianism. It seemed that the primary interest of legislators lay in getting votes, rather than in formulating good public policies for the nation. By holding the relevant provisions of the Civil Code as inconsistent with the constitutional provisions guaranteeing equality and the pursuit of happiness, the Constitutional Court helped feminist groups and other interest groups to accomplish one of their longstanding goals.

Lastly, in the cultural realm, the Constitutional Court has also helped make Korean society freer and more open. In 1996, the Court held that provisions of the Motion Picture Act requiring pre-inspection of movies by a quasi-administrative agency violated the constitutional provision prohibiting pre-censorship. This case arose from the imposition upon the defendants of a criminal fine of one million Korean Won for showing, without the required pre-inspection, a movie called "Oh, the Country of My Dreams!," which was about the May 18th Kwangju Democracy Uprising of 1980. The decision of the Court was hailed by the movie industry and the arts community as a monumental advancement of artistic freedom and of the freedom of speech. As these few cases have shown, the activities of the Constitutional Court are bringing about a change in the meaning of the term "Constitution." It now signifies a living law of the land; it is no longer a decorative norm. Government agencies now have to ensure their acts are consistent with constitutional provisions.

Encouraged by the assertiveness of the Constitutional Court, the ordinary courts have also taken a more proactive stance in providing redress for violations of citizens' basic rights. In a sense, the Constitutional Court and the ordinary courts have now become competitors in a good sense toward the objective of how best to protect the freedom and rights of the citizens. The activities of the Constitutional Court have also stimulated the Korean academic circle of constitutional law specialists. In rendering its decisions, the Constitutional Court does not merely state its conclusions; it also provides detailed explanations for the conclusions. As a result, a considerable amount of materials has been accumulated on both the substantive and the procedural aspects of constitutional law, and constitutional scholars critique the Court’s decisions by bringing to bear their own theoretical analyses. These decisions provide a vehicle through which academics and practitioners can develop close relationships and provide mutual criticism and encouragement.

The constitutional adjudication system of Korea is essentially based on the European model. Nevertheless, the institution of judicial review in the United States and its historical experience in constitutional issues have been immensely useful to Korea. This can be partly explained by the universality of constitutional values or by a certain trend toward the convergence of the American and the Continental European systems of constitutional adjudication. But it is also important to note that the Unites States has the longest-surviving constitution and the most successful constitutional adjudication system in the world.

There seems to be no fundamental difference between the United States and Korea with regards to the criteria for adjudicating constitutionality of legislation and governmental actions. Both countries share the same demand for proportionality between legislative objectives and the means of their attainment, for proper balancing of competing public interests or of conflicting public and private interests, and for the employment of different levels of constitutional scrutiny depending on the type of basic rights involved or the type of restrictions imposed thereon. Many decisions of the Korean Constitutional Court have been influenced by related U.S. decisions. Examples include the U.S. decisions on freedom of expression and due process of law. Not infrequently one will find in our decisions legal theories and related concepts about freedom of expression, such as prior restraint, void for vagueness, void for over breadth, chilling effect and the like. The Court’s decision regarding pre-inspection of movies is a case in point.

We have drawn a great deal of inspiration from the German constitutional adjudication system which is, in a sense, the forerunner of the European model. Nevertheless, we often face situations in which we wish to look away from the elaborate and heavily theoretical system of Germany and to the more lively decisions of the Unites States. This is probably because we feel that we can witness the spirit of freedom embedded in the American decisions, which are a source of inspiration and stimulation for us on the essence of constitutional values. Even though the Constitutional Court of Korea is patterned after the German model, we are continually looking to learn from the merits of the American system. This, I think, also partly explains the recent trend among our constitutional legal researchers, who assist the Justices of the Constitutional Court, in choosing to come to the United States for their long-term overseas training opportunities.

In the relatively short period of eleven years since its establishment, the Constitutional Court has played an important role in liberalizing and democratizing the Korean society as well as in strengthening the rule of law. Of course, this does not mean that our track record is perfect. In fact, there have been plenty of criticisms and reproach directed at the Court. The constitutional adjudication system of Korea has only taken its first step in a long journey toward the perfection of the rule of law and democracy, and we fully realize that there are many obstacles to overcome in this journey. Yet, despite all these obstacles, I am confident that the constitutional adjudication system, which has just started to take its place in Korea, will contribute to the transformation of the Korean society into a freer and more democratic one. I pledge that the Constitutional Court of Korea will continue to perform, through its ad judicatory activities, the task of spreading the constitutional values of freedom, equality and human dignity to every corner of the society.