Kim Sang-hwan (20th Judicial Research and Training Institute) was inaugurated as the president of the Constitutional Court, and Oh Young-joon (23rd) as a justice on the 24th. With their joining, the ideological landscape of the Constitutional Court has been restructured from a balanced left-right state to a progressive dominance. The legal community is paying attention to how this change will affect the pending constitutional complaints related to the death penalty, the Serious Accident Punishment Act, same-sex marriage, and male military service.
◇ Constitutional Court restructured to 4 progressives, 3 moderates, 2 conservatives...maintained for 4 years
The Constitutional Court consists of 9 justices. However, after the acting president Moon Hyung-bae and former justice Lee Mi-sun departed on April 18, and their successors were not immediately appointed, a 7-member system continued for three months. In this system, the ideological makeup of the court was evaluated as '2 conservatives (Jeong Hyeong-sik, Jo Han-chang), 3 moderates (Kim Hyung-du, Jeong Jeong-mi, Kim Bok-hyeong), and 2 progressives (Jeong Gye-seon, Ma Eun-hyeok).
With the inauguration of President Kim and Justice Oh, who are evaluated as progressive, the ideological structure of the Constitutional Court has become '4 progressives, 3 moderates, 2 conservatives.' President Kim is a member of the progressive judicial research group 'International Human Rights Law Research Association.' She was appointed as a Supreme Court Justice during former President Moon Jae-in's administration and later became the head of the Court Administration Office during former Chief Justice Kim Myung-soo's tenure. Justice Oh is also from another progressive judicial group within the court, 'Our Law Research Association.'
This structure is expected to be maintained for about four years until the retirement of Justice Kim Hyung-du, who was the quickest to be appointed among the 9 justices, in March 2029. Justice Kim was recommended by former Chief Justice Kim Myung-soo and appointed by former President Yoon Suk-yeol. The next justice will be recommended by the successor of Chief Justice Cho Hee-dae and appointed by President Lee Jae-myung.
◇ Pending constitutional complaints include the death penalty, Serious Accident Punishment Act, same-sex marriage, and male military service
The Constitutional Court has several cases pending that require deep societal contemplation or significantly impact the citizens. A representative case is the constitutional complaint regarding the death penalty. The court determined the death penalty to be constitutional twice, in 1996 and 2010. However, the number of dissenting opinions increased from 2 in 1996 to 4 in 2010.
The third constitutional complaint was filed in February 2019 by the Justice and Peace Committee of the Korean Catholic Bishops' Conference with the consent of a person surnamed Yoon, who was indicted for the alleged murder of his parents. Mr. Yoon reportedly filed the complaint after a first trial in which the prosecution sought the death penalty. The Constitutional Court has not ruled after a public hearing in 2022.
There are multiple constitutional complaints filed regarding the constitutionality of the Serious Accident Punishment Act, which was enacted in 2022. This law punishes business owners and managerial personnel with imprisonment of over one year or fines of up to 1 billion won in cases of fatal accidents occurring in the industrial sector.
In March, the Busan District Court accepted a request for a constitutional review of the Serious Accident Punishment Act filed by a person surnamed Park, who was undergoing an appellate trial for violating the law. The court noted in its ruling on the request that applying the Serious Accident Punishment Act to hold the primary contractor criminally liable to a harsh degree for all major accidents arising from the process of subcontracting work to specialized subcontractors lacking professional skills and experience could be constitutionally problematic.
Moreover, a constitutional complaint has been filed asserting that the current civil law, which does not recognize same-sex marriage, is unconstitutional. This was initiated by a sexual minority group in February. The civil law prohibits incest (Article 809) and polygamy (Article 810) within 8 degrees of kinship but does not include provisions forbidding same-sex marriage. However, administrative authorities reject marriage registrations for same-sex couples based on interpretations of the Constitution and civil law that view marriage solely as a union between opposite sexes.
Additionally, a constitutional complaint was filed in June challenging the provisions of the Military Service Act that impose draft obligations solely on males. The Constitutional Court had previously ruled the law constitutional in 2010, 2014, and 2023. However, in the 2010 ruling, Justices Lee Gong-hyeon and Mok Young-jun expressed dissenting opinions.