As problems mount following the introduction of constitutional appeals against court rulings, the Constitutional Court launched an overseas fact-finding mission four months after the system took effect — but the trip amounted to little more than reconfirming concerns that had been raised before the system was adopted. Critics say rushing implementation without adequate design work has left filings above 2,300 in just six months, while belated efforts to patch the system are draining budget and administrative capacity.
According to the Constitutional Court's overseas travel report and case-processing data obtained by Seoul Economic Daily on the 28th through the office of Rep. Kim Min-jeon of the People Power Party, six officials including Justices Ma Eun-hyuk and Oh Young-jun visited Spain and Germany from July 5 to 15 this year. The trip cost a total of 80.895 million won. The delegation visited the constitutional courts of both countries to study how they handle appeals against court rulings, including case screening, review on the merits, and procedures following the cancellation of a ruling.
But many of the key issues identified in the 108-page report had been flagged by the legal community well before the system took effect. The court noted that South Korean law sets out no specific requirements for referring such cases to the full bench, and identified the establishment of "reasonable referral standards" as a task to be addressed. It also stated that "research on follow-up procedures is needed," noting the absence of rules on which level of trial should be cancelled, to what extent, and to which court a case should be sent back.
Concerns that the system could effectively function as a "fourth trial tier" were also reconfirmed. Germany screens cases first, then limits its review to constitutional questions while deferring to the fact-finding and statutory interpretation of ordinary courts. Spain likewise requires "special constitutional significance" as a condition for referral. The delegation pointed out that South Korea has no comparably detailed referral standards in place.
While the system was launched first and its flaws and remedies sought only afterward, cases piled up quickly. The court said 2,310 related cases were filed between March and the end of August this year. Of those, 2,099 cases, or 90.9%, were dismissed by screening panels, and 184 are under review. Only 19 cases, or 0.8%, were referred to the full bench and are currently under review.
The cost of coping with the surge has also grown. The court added 36 staff to handle the appeals, leased an annex building for about 980 million won a year, and is pushing ahead with an 8.7 billion won expansion of its headquarters.
Requests for retrial of dismissal decisions reached 156. Of those, 126 were dismissed again and 30 are under review by screening panels. It took an average of 17.1 days from filing to dismissal by a screening panel, and an average of 19.7 days to referral to the full bench.
Notably, 909 of the 2,099 dismissed cases did not meet the statutory grounds for filing such an appeal in the first place. Another 913 were dismissed for other procedural defects, while 221 were filed past the deadline and 56 had not exhausted all other remedies. In effect, the indiscriminate filings and case flood feared before the system launched have materialized.
Of the 2,310 total cases, 1,521, or 65.8%, involved criminal trials. If an appeal succeeds and a final ruling is cancelled, questions could arise not only over which court should retry the case but also over how to handle the effect of a sentence already carried out.
Cha Jin-a, a professor at Korea University Law School, said the flood of filings and the court's lack of capacity to handle them "were clearly warned about before the system took effect," adding that admissibility requirements, preliminary screening procedures, and staffing and organizational capacity should have been put in place first. Attorney Hwang Do-soo, a former constitutional research officer, said, "The system has already been implemented, so it is questionable what the point is of going abroad afterward."
Rep. Kim called it "a useless trip that did no more than reconfirm problems already pointed out, after the system was hastily introduced," and stressed that "given the high dismissal rate and the procedural gaps that have been confirmed, we need to take a hard look at whether the current system can properly function as a means of protecting citizens' rights."
