In Korea, the Constitution was amended in 1987 (generally referred to as the Constitution of the 6th Republic), heralding Korea’s era of democratization. After the democratization, the Constitutional Court of Korea is working very actively and attracting attention globally. In this article, the following topics are discussed: 1) The history of the constitutional review system after the founding of the Republic of Korea, 2) An overview of the present Constitutional Court, and 3) The problem of ‘political judicialization’ that has appeared in the court cases. The Constitutional Court of Korea basically models the German Constitutional Court. However, unlike in Germany, there are some very Korean characteristics. From the viewpoint of its organization, the Korean Constitutional Court has nine judges who passed the exam for the legal profession. Three of the nine judges must be nominated by Parliament, three by Chief Justice of Supreme Court, and three by President. While this is believed to be in consideration of the separation of powers, in reality, the influence of the President is relatively significant. From the viewpoint of its function, unlike the German Constitutional Court, the Constitutional Court of Korea has no authority for abstract normative control, and concrete normative control is done only for laws. The reason for no abstract normative control is that the Constitutional Court does not have to take a position over the Parliament. On the other hand, since the Constitutional Court's decision has the power to invalidate the law, it still has a significant influence on legislation. For this reason, the Constitutional Court has made judgments to allow room for legislative discretion by using various judgment methods called ‘transformation decisions’ in consideration to the legislature. However, its positive activities have created the phenomenon of ‘politicization of justice’ or ‘judicialization of politics’. It is examined in this article, how the Constitutional Court can be positioned for democracy and political processes through analysis of the role of the Constitutional Court from the relationship with the political sector.
Noriko Kokubun (Tue,) studied this question.