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The judicial reform bill introduced by the Democratic Party of Korea on the 20th is anticipated to represent the most substantial transformation of the judiciary since the country’s democratization in 1987, should it be enacted. The legislation involves incorporating “trials” into the scope of constitutional complaints handled by the Constitutional Court (known as trial complaints) and increasing the number of Justices from the current 14 to 26, a move that will necessitate addressing both political disputes and practical challenges like delays in court proceedings. Some members of the legal and academic sectors have expressed concerns, stating, “The Democratic Party is tackling issues that greatly affect people’s lives by first presenting ‘conclusions’ and then asserting that they are undergoing ‘public discussion.’” Additionally, there are allegations that this approach breaches the constitutional principle of separation of powers.

◇Vagueness in Legal Accusations Focuses On

The “trial complaint” introduced by the Democratic Party as part of its party policy seeks to make court trials eligible for constitutional complaints directed at the Constitutional Court. According to the Constitutional Court Act, constitutional complaints are processes used to assess whether “public authority” exercised by state bodies has violated citizens’ fundamental rights. Currently, trials are not covered under this. Nevertheless, the Democratic Party contends, “Trials also constitute public authority,” and has suggested a law that would permit trial-related complaints if the trials breach the Constitution or legal statutes.

Legal experts have highlighted that this could essentially establish a “fourth trial system” and include unconstitutional aspects. This contradicts Article 101, Sections 1 and 2 of the Constitution, which specify that judicial power is held by the courts and that the Supreme Court is the highest authority. Additionally, Article 107, Section 2 grants the Supreme Court the ultimate power to review court decisions. On the other hand, some contend, “Since constitutional complaints pertain to legal revisions (Constitutional Court Act), it is challenging to classify them as unconstitutional” (Professor Lee Chang-hyun, Hankuk University of Foreign Studies, among others).

The Democratic Party states, “Trial complaints deal with violations of citizens’ fundamental rights during trials and are not regular judgments, hence not a fourth trial system.” Nevertheless, the People Power Party contends that if the Constitutional Court halts the trial’s effect until a final decision and mandates a retrial after accepting the complaint, it acts as a fourth trial.

The exact requirements for filing trial-related complaints are still not well defined. As per the Democratic Party’s suggested amendment to the Constitutional Court Act, complaints may be submitted if a trial “violates fundamental rights by breaching the Constitution or laws in an obvious way,” “violates fundamental rights by failing to adhere to due process outlined in the Constitution and laws,” or “violates fundamental rights by conflicting with decisions made by the Constitutional Court.”

A legal expert raised the question, “For instance, should a party who was awarded a 90 million Korean won compensation judgment be permitted to submit a trial complaint, arguing, ‘I should have received 100 million Korean won, so the court’s decision violated my 10 million Korean won property rights’?” A member of the Constitutional Court remarked, “It is challenging to offer a specific interpretation under the current legislation.” The Democratic Party commented, “We will continue with public discussion.”

◇Unlawful Worries Regarding External Assessments of Judges

The Democratic Party’s plan to incorporate evaluations of judges from local bar associations into judicial reviews has faced backlash over possible unconstitutional aspects. Professor Jang Young-soo from Korea University stated, “Judges might struggle to make impartial decisions because of pressure from lawyers, who can be seen as involved parties in court cases, concerning their employment issues.” This could violate Article 103 of the Constitution, which ensures judicial independence.

Another analysis suggests that the Democratic Party’s effort to address increasing the number of justices following the ruling in President Lee Jae-myung’s Public Official Election Act case is an attempt to interfere with the judiciary’s power and judicial independence. The Supreme Court overturned the lower court’s acquittal in President Lee’s election law case and sent it back for a new trial on May 1. Soon after, the Democratic Party introduced bills to increase the number of justices to “30” and “100,” and discussions about expanding the number of justices started seriously. If the Democratic Party’s proposal to raise the number of justices from 14 to 26 is enacted, President Lee could appoint 22 justices during his term. One legal expert remarked, “This might be seen as an attempt to ensure favorable trial results for the president through appointed judges.” Professor Hwang Doo-soo from Konkuk University commented, “The timing is very inappropriate.” There are also worries that public confidence in the judiciary might be damaged.

Critics also claim that the Democratic Party’s plan to implement trial complaints might worsen delays, going against its aim to reduce them. A legal professional stated, “The public’s inclination to challenge trials will increase, leading to higher costs as cases take more time to resolve.” The Constitutional Court estimates that introducing trial complaints would result in an additional 12,000 cases each year, compared to the 2,500 cases currently processed annually.

Professor Cha Jin-a from Korea University stated, “If trial complaints are implemented without modifying the Constitutional Court’s composition of nine justices, the court will be flooded with cases, leading to significant delays in trials.” In contrast, the number of Supreme Court justices is defined in the Constitution, and any increase would require a constitutional amendment. Germany’s Federal Constitutional Court, which permits trial complaints, consists of 16 justices. However, Professor Yu Byung-hyun from Korea University pointed out in a research paper that unlike Germany, which enforces strict limits on appeals, South Korea allows almost no restrictions on appeals, effectively making trial complaints a fourth level of judicial review.