Supreme Court of Korea

The Supreme Court of Korea is the highest ordinary court in the judicial branch of South Korea, seated in Seocho, Seoul. Established under Chapter 5 of the Constitution of South Korea, the Court has ultimate and comprehensive jurisdiction over all cases except those cases falling under the jurisdiction of the Constitutional Court of Korea. It consists of fourteen Justices, including the Chief Justice of the Supreme Court of Korea. The Supreme Court is at the top of the hierarchy of all ordinary courts in South Korea, and traditionally represented the conventional judiciary of South Korea. The Supreme Court has equivalent status as one of the two highest courts in South Korea. The other is the Constitutional Court of Korea.

History
The original constitution during the First Republic established 'Supreme Court' and 'Constitutional Committee' (헌법위원회) in Chapter 5. The Supreme Court was established as the highest ordinary court but lacked the power of constitutional review, which was conferred upon the Constitutional Committee, a sort of constitutional court. This distribution of judicial power inside judiciary was never fully realized under rule of South Korea's first president Syngman Rhee, whose dictatorship hampered the committee's function and eventually left it unable to re-constitute itself. Though the Supreme Court had no power of judicial review, it enjoyed judicial independence under the first Chief Justice of the Supreme Court, 'Kim Byung-ro' (김병로), from 1948 to 1957. Renowned for his ardent participation in Korean independence movement during the Japanese colonial rule, Chief Justice Kim Byung-ro famously defended the independence of the judiciary from Syngman Rhee.

However, after Kim Byung-ro's retirement in 1957, the Supreme Court fell to autocratic influence. By giving the death sentence to Park's political contender Cho Bong-am in 1959 and also by sentencing death on the defendants of People's Revolutionary Party Incident in 1975 under Park Chung Hee's era, the Supreme Court gained notorious reputation for judicial murder (사법살인) as obediently sentencing capital punishments over spy scandals fabricated by dictators. After the April Revolution, the Constitutional Court was established to replace the Constitutional Committee, but the Supreme Court remained largely unaffected by the changes. After Park Chung Hee's 1961 coup, the Second Republic was dissolved and, after a nominal transition to civilian rule from a military junta, the Third Republic was established in 1962. The Constitutional Court, itself never formed because of the coup, was abolished while the power of judicial review was conferred on the Supreme Court. Nevertheless, the Supreme Court retained its deference towards the ruling dictator. In 1971, the Supreme Court resisted the oppressive rule of President Park Chung Hee and declared Article 2 of the National Compensation Act (국가배상법) unconstitutional, a statute that limited state liability for injured soldiers during service. President Park retaliated by refusing reappointment of Supreme Court Justices, which had been a formality. The Fourth and Fifth Republics would endow a new, differently-formed Constitutional Committee with the power of constitutional review but on the condition that a court first formally submit a request before the committee could hear a case. This extra procedural hurdle was meant to nullify the committee, since the Supreme Court would never authorize such requests, while allowing the Park Chung Hee regime to maintain the pretense that it granted the Committee full constitutional-review power. It effectively allowed the military junta to act with impunity. Following 1987 democratization, the Constitutional Court was restored in the Sixth Republic, with the power of constitutional review. To prevent the president from undermining the judiciary again, the 1987 constitutional amendment, which established the Sixth Republic, allows citizens to file a constitutional complaint directly with the Constitutional Court, even if courts refuse to do so.

In 2015, the Organisation for Economic Co-operation and Development ranked the South Korean ordinary judiciary to be one of the most efficient in terms of trial length and trial costs.

Justices
The composition and appointment of Supreme Court justices (대법관) are governed by a combination of constitutional provisions and statutory regulations. While the current Constitution of South Korea does not specify the precise number of Supreme Court justices, this matter is addressed by the Court Organization Act, a statute that outlines the structure of ordinary courts in the country.

As of 2022, Article 4(2) of the Court Organization Act establishes that the number of Supreme Court justices is set at 14. Notably, all Supreme Court justices are appointed by the President of South Korea, subject to the approval of the National Assembly, as stated in Article 104(2) of the Constitution. Additionally, Article 104(2) empowers the Chief Justice of the Supreme Court to recommend candidates for appointment to the position of Supreme Court justice.

To be eligible for appointment as a Supreme Court justice, individuals must meet certain criteria outlined in Article 42(1) of the Court Organization Act. First, they must be at least 45 years old. Second, they must qualify as an attorney at law. Lastly, candidates must have accumulated over 20 years of experience in legal practice or academia.

These provisions ensure that the Supreme Court of South Korea is composed of individuals with substantial expertise and experience in the field of law. The appointment process, involving the President and the National Assembly, as well as the Chief Justice's role in recommending candidates, aims to uphold the independence and integrity of the Supreme Court while maintaining the necessary checks and balances within the judicial system.

Council of Supreme Court Justices
According to Article 104(2) of the Constitution of South Korea, the appointment of lower ordinary court judges (판사), by the Chief Justice of the Supreme Court requires the consent of the 'Council of Supreme Court Justices' (대법관회의). This council consists of all Supreme Court justices, including the Chief Justice. The decision-making process of the council is governed by Article 16(1), (2), and (3) of the Court Organization Act.

To reach a decision, a simple majority vote among a quorum of two-thirds of all Supreme Court justices is required. In the event of a tie, the Chief Justice, serving as the permanent presiding chair of the council, has the authority to cast a tie-breaking vote. Article 17 of the Court Organization Act further empowers the council with additional supervisory functions concerning the Chief Justice's power of court administration.

These functions include the promulgation of interior procedural rules, the selection of judicial precedents for publication, and fiscal planning for all ordinary courts, including the Supreme Court itself. In essence, the Council of Supreme Court Justices serves as a mechanism for collective decision-making and oversight within the Supreme Court of South Korea, ensuring the fair and effective administration of justice while upholding the principles of transparency and accountability.

Chief Justice of the Supreme Court
According to Article 104(1) of the Constitution of South Korea, the Chief Justice of the Supreme Court is appointed by the President of South Korea, subject to the approval of the National Assembly. The requirements for experience and age for the Chief Justice are the same as those stipulated for associate Supreme Court justices under Article 42(1) of the Court Organization Act.

The role of the Chief Justice extends beyond serving as the presiding member of en banc hearings (or Grand Bench, 전원합의체), which are composed of more than two-thirds of all fourteen justices. In addition to this crucial responsibility, the Chief Justice has other significant functions.

Under Article 111(3) of the Constitution, the Chief Justice nominates candidates for three out of the nine Constitutional Court justices. This role emphasizes the Chief Justice's involvement in the selection process for the Constitutional Court. Furthermore, the Chief Justice serves as the chairperson of the Council of Supreme Court Justices, playing a pivotal role in leading and overseeing the activities of this council.

Moreover, the Chief Justice appoints one of the associate Supreme Court justices to the position of Minister of National Court Administration (법원행정처). This appointment involves selecting a justice to fulfill the administrative duties associated with managing the national court system. Additionally, with the consent of the Council of Supreme Court Justices, the Chief Justice appoints all lower court judges in ordinary courts, further emphasizing their influential role in shaping the judiciary.

These responsibilities collectively highlight the multifaceted nature of the Chief Justice's position within the South Korean judicial system, encompassing not only judicial leadership but also administrative and nominating functions that contribute to the overall functioning and integrity of the courts.

Tenure
Article 105(1), (2), and (4) of the Constitution, along with Article 45(4) of the Court Organization Act, outline the term of associate justices of the South Korean Supreme Court. Their term is initially set at six years and can be renewed until the mandatory retirement age of 70. However, in the current Sixth Republic, no justices have attempted to renew their term through reappointment. This is due to the potential risk to the judicial independence of the Court that may arise from such renewal attempts.

During their term, as stated in Article 106(2) of the Constitution, justices cannot be removed from office except through impeachment or a sentence of imprisonment. Furthermore, engaging in any political party affiliations or activities is strictly prohibited under Article 43(1) and 49 of the Court Organization Act.

A significant aspect of South Korean Supreme Court justices is that they can be compelled to retire against their will while serving their term if they are deemed to have severe mental or physical impairment. This retirement order (심신장해로 인한 퇴직명령), is explicitly stipulated in Article 106(2) of the Constitution and Article 47 of the Court Organization Act. Similarly, the Chief Justice of the Supreme Court has the authority to order the retirement of lower ordinary court judges if they are found to have impairments. This retirement order system represents a significant distinction between Supreme Court justices and Constitutional Court justices. The latter cannot be ordered to retire due to impairment, as there is no statutory provision establishing such a system in the Constitutional Court Act.

Research judges
The Research division of the Supreme Court (재판연구관), comprises officials who provide support to the Supreme Court Justices. These officials, referred to as Research Judges (formerly known as Judicial Researchers or Research Judges), are governed by Article 24(3) of the Act.

There are two categories of Research Judges. The first category consists of lower ordinary court judges who are seconded to the Supreme Court by order of the Chief Justice. The second category, known as Judicial Researchers, comprises experts who are not lower ordinary court judges. Judicial Researchers are appointed for a maximum term of three years, while Research Judges are typically seconded to work in the Supreme Court for one to two years.

This system of Research Judges and Judicial Researchers is influenced by the German concept of "Wissenschaftlichen Mitarbeiter" (Research Associates). In Germany, Research Associates are lower court judges who are seconded to federal courts for up to five years, serving as judicial assistants to judges in the highest courts.

Although the working terms for these research staff members are relatively short, they play a crucial role as core staff members in managing the entire judicial process of the Court. This is particularly important considering the high volume of cases appealed to the Court. As of April 2022, there are approximately 100 Research Judges and around 30 Judicial Researchers contributing to the operations of the Supreme Court in South Korea.

National Court Administration
The 'National Court Administration' (NCA, 법원행정처), was established as an administrative body of the Supreme Court in accordance with Article 67 of the Court Organization Act. The NCA is responsible for overseeing and managing all administrative matters pertaining to the ordinary courts in South Korea, including the Supreme Court itself.

The head of the NCA, referred to as the 'Minister of NCA' (법원행정처장), is exclusively appointed by the Chief Justice of the Supreme Court from among the associate Supreme Court justices. Similar to other Supreme Court justices, the Minister is regarded as holding the same level of authority as other ministers included in the State Council in the executive branch of the South Korean government.

Additionally, the Chief Justice typically appoints the Vice Minister of NCA, usually selecting a senior lower court judge for the position. The Vice Minister of NCA is treated at the same level as other vice-ministers within the government structure.

The NCA operates under the guidance and direction of the Chief Justice and implements decisions made by the Council of Supreme Court Justices. Its primary responsibilities include assisting the Chief Justice in matters related to human resources for lower ordinary court judges, planning fiscal budgets and managing expenditure issues for all ordinary courts, and conducting internal inspections to ensure anti-corruption and ethical standards are upheld.

Judicial Research and Training Institute
The 'Judicial Research and Training Institute' (JRTI, 사법연수원), is an institution primarily responsible for training and re-educating lower ordinary court Judges, as outlined in Article 72 of the Court Organization Act. However, its role has evolved over time.

Originally, the JRTI served as a nationwide two-year law school supported by the South Korean government. This was prior to South Korea adopting the American-style three-year law school system in 2008 (법학전문대학원). Before the adoption of the American law school system, the JRTI played a vital role in training legal professionals in South Korea. Another pathway for legal professionals was recruitment by the South Korean Armed Forces as 'Judge Advocates' (군법무관) within the military justice system.

The JRTI was initially modeled after the 'Legal Research and Training Institute' (司法研修所) in Japan, which trained judges, prosecutors, and attorneys-at-law simultaneously. In South Korea, candidates for the JRTI were selected through a nationwide jurisprudence exam known as the 'Judicial exam' (사법시험). These trainees underwent a two-year training program at the JRTI, where they received education and competed with one another. The career options available to them after graduation were influenced by their performance and records at the JRTI. Graduates with outstanding records typically pursued careers as judges and prosecutors, while those with lower records often chose to work as lawyers in various fields. This system partially reflected the civil law tradition of considering prosecutors as a de facto part of the judiciary as the deputy director (or vice-president) of the JRTI is appointed among prosecutors according to Article 74(1) of the Court Organization Act. Similar arrangements can be observed in institutions like the French National School for the Judiciary.

With the adoption of the American-style three-year law school system in South Korea, the JRTI's role as the exclusive professional school for law diminished. It transformed into an internal education institute for newly appointed judges and law clerks. Some senior judges also receive additional training at the JRTI for technical matters. Currently, all training functions for Prosecutors have been transferred to the 'Institute of Justice' (법무연수원) at the Ministry of Justice, signifying a change in the training structure for legal professionals in South Korea.

Judicial Policy Research Institute
The 'Judicial Policy Research Institute' (JPRI, 사법정책연구원), was established in 2014 under Article 76-2 of the Court Organization Act. It serves as a specialized body within the Supreme Court of South Korea, focusing on research related to policy issues concerning the judicial system. Additionally, the JPRI plays a role in educating the public on fundamental aspects of the functioning of ordinary courts.

The Institute primarily recruits research fellows and researchers from the pool of lower ordinary court judges, as outlined in the provisions of Article 76-4 of the Act. However, a significant number of researchers are also recruited externally from individuals who possess PhD degrees and have expertise relevant to the field of judicial policy research. This diverse recruitment strategy enhances the institute's ability to gather insights and perspectives from both within and outside the ordinary courts.

Currently, the JPRI is located in Goyang, Gyeonggi Province, providing a dedicated space for its research activities and initiatives.

Building
The Supreme Court was located in Seosomun-dong of Jung-gu, Seoul until year 1995. Currently, it is located in Seocho, Seoul. The Supreme Court building in Seocho has 16 floors and two underground floors with total space around 66,500 square meters. This large size building was necessary to hold the Supreme Court, National Court Administration and law library all together. Main Center of the building is mainly used by the Supreme Court, while east Wing is maily used by National Court Administration. Other Wing is used by law library. At the center entrance of the building, three Korean words are engraved; 자유 meaning freedom, 평등 meaning equality, and 정의 meaning Justice. The Supreme Court usually does not hold open hearing session, though sessions for verdicts are regularly held on the second and last Thursday of a month.

Jurisdiction
Empowered by Article 101(2) and 110(2) of the Constitution, the Supreme Court of South Korea possesses comprehensive final appellate jurisdiction over all cases from ordinary courts and military courts. Additionally, it exercises the power of judicial review at the sub-statutory level, similar to other ordinary courts, as specified in Article 107(2) of the Constitution. Notably, the Supreme Court exclusively handles certain cases as single-tier trials, without the possibility of appeal.

One category of cases subject to single-tier trials in the Supreme Court pertains to disputes related to the election of the President of South Korea, National Assembly members, provincial-level local governors, and local parliament members. These cases are governed by Article 222 and 223 of the Public Official Election Act (공직선거법), which designates the Supreme Court as the sole authority responsible for their adjudication.

Another example of single-tier trials at the Supreme Court involves cases concerning disciplinary actions against judges for misconduct. According to Article 27(2) of the Discipline of Judges Act (법관징계법), such cases are exclusively heard by the Supreme Court.

Procedure
As outlined in Article 7(1) of the Court Organization Act, the Supreme Court of South Korea carries out its final appellate jurisdiction through two distinct phases. The first phase is known as the 'Petty Bench,' which consists of a smaller panel within the Court. The Petty Bench is presided over by the most senior justice serving within that particular panel.

The second phase is referred to as the 'Grand Bench,' which operates as an en banc session of the Court. The Grand Bench is always presided over by the Chief Justice of the Supreme Court. During these sessions, all justices of the Supreme Court come together to deliberate on cases and make decisions.

Four-Judge Panels and En Banc Hearings
In the initial phase of the procedure, a four-judge panel (or "Petty Bench," 소부) examines how the appeal should be handled. If the four justices within the same panel reach a unanimous decision, the case is resolved within the panel. However, in cases where the panel fails to reach a unanimous decision or determines that the matter should be heard en banc (such as when changing a Supreme Court precedent or when addressing a significant constitutional issue at a sub-statutory level), the case is referred for an en banc hearing (or "Grand Bench," 전원합의체).

Given that the Court has three four-judge panels, only twelve out of the fourteen Supreme Court justices participate in the first phase of the procedure. The remaining two Supreme Court justices — the Chief Justice and the Minister of National Court Administration — hold administrative roles within the Court but are not assigned to any specific panel.

In the second phase, an en banc hearing ( "Grand Bench," 전원합의체), comprising more than two-thirds of all Supreme Court justices, examines cases forwarded by the four-judge panels. Decisions are made by a simple majority vote. However, if a majority opinion cannot be reached, the Court's decision is determined in accordance with Article 66 of the Act.

In either phase, the Supreme Court does not adjudicate facts but rather deliberates based on the evidence introduced in lower-court trials. Unlike the fact-finding nature of the lower courts, the Supreme Court only examines whether there are errors in the application of law and logic in the decisions of the lower courts regarding the specific case. Therefore, the role of the Supreme Court is to review the decisions of the lower courts and not to issue new judgments.

The Supreme Court primarily issues two types of rulings: affirming the lower court's decision (원심확정) or remanding the case (파기환송). Remanding, in simple terms, refers to the act of overturning a lower court's decision and sending the case back for a retrial. In such cases, the lower court is bound by the legal principles highlighted by the Supreme Court. Unless new factual circumstances arise that challenge those legal principles, the lower court must render a decision as directed by the Supreme Court. Consequently, a "verdict of acquittal with a remand for retrial" is considered final, even though it necessitates a new trial at the lower court.

Presiding Justice and Justice in charge
In South Korea, judicial panels include a 'presiding member' (재판장) and a 'member in charge' (주심). The presiding member serves as the official representative of the panel, while the member in charge oversees the proceedings and trial and prepares the draft judgment for the specific case at hand. This role of the member in charge bears similarities to that of the Judge-Rapporteur in the European Court of Justice.

Typically, the member in charge is selected randomly by a computer system to ensure impartiality and avoid any suspicion of bias. On the other hand, the presiding member is chosen based on seniority through a bureaucratic process. It is important to note that the term 'presiding judge' (부장판사) in South Korean courts often refers to a judge who is bureaucratically considered the 'head of the panel' rather than the individual who actively takes on the role of the presiding member for a specific case.

Case naming
South Korea's Supreme Court follows a specific naming convention for current cases. The case name consists of a combination of numbers and alphabets that provide information about the case. The first two or four digits represent the year when the case was filed, indicating the timeframe in which the legal proceedings began. Following the year, a case code composed of alphabets is assigned, which corresponds to a particular jurisdiction within the Court.

For instance, the letter 'Da' is used to denote cases related to private law, while the letter 'Du' is used for criminal law cases. This case code helps categorize and classify the types of cases being heard by the Court. Finally, the last serial number is assigned based on the order of case filing within a given year, ensuring a unique identification for each case.

Statistics
The Supreme Court received approximately 35,000 – 48,000 appeal cases per year from 2011 to 2020. However, the South Korean Supreme Court is legally not allowed to "reject" an appeal (상고허가; see certiorari). In South Korea, a certiorari system was established in March 1981 under the Special Act on Acceleration of Lawsuits (소송촉진 특례법), which granted the Supreme Court the authority to decline hearing cases it considered trivial or unworthy of review. However, given that the South Korean legal system generally upholds the guiding principle of three trials, the prospect of the Supreme Court rejecting petitions was perceived as a potential infringement on the right to a fair trial. As a result, it was abolished in September 1990. Now, upon receiving a petition for review, the Supreme Court must form a panel consisting of four justices. The panel then either unanimously reaches a decision (e.g., uphold the lower court's ruling or remand the case) or refer the case for an en banc hearing.

The unique institutional structure of the Supreme Court imposes a considerable workload on its justices. Each year, the Court handles a vast number of cases, typically ranging from 35,000 to 50,000. However, only a small fraction, approximately 10 to 20 cases, are selected for en banc hearings (전원합의체). This selective process means that a substantial portion of cases that are not heard en banc receive relatively brief deliberation, often lasting only "3 to 4 minutes," as disclosed by former Supreme Court Justice Park Sihwan in a post-retirement paper. Consequently, the role of Research Judges within the Court becomes vital, ensuring thorough analysis and examination of the legal cases that do not undergo en banc hearings.

The potential reforms to the South Korean judicial system remain a subject of controversy and debate. Several options have been put forth to address the existing challenges. These proposals encompass increasing the number of Supreme Court justices, reintroducing the certiorari system (상고허가제), and establishing an additional tier of appellate courts (상고법원) positioned between the current appellate courts and the Supreme Court. This intermediate level of appellate courts would be specifically responsible for handling cases that the Supreme Court opts not to review or address. Each of these reform options carries its own implications and considerations, and stakeholders continue to discuss and analyze their potential impact on the South Korean judicial system.

Former Chief Justice Yang Sung-tae faced accusations of influence-peddling during Park Geun-hye's presidency. According to the allegations, Yang was involved in manipulating a particular case to benefit President Park Geun-hye in exchange for the creation of an additional tier of appellate courts (상고법원). He was arrested in 2019, and the trial is still ongoing as of May 2023.

Criticism and Issues

 * The Supreme Court's fame and trust is again gradually deteriorating again in contemporary South Korea, due to social concerns on unfairly lenient attitude toward establishments like Chaebol and embarrassing political struggle inside the hierarchy of ordinary courts such as case-rigging scandal of 15th Chief Justice Yang Sung-tae.
 * Both Constitution and the Court Organization Act have no contingency plan for massive vacancy of the Supreme Court. Thus, when the National Assembly refuses to make consent on appointment of Supreme Court Justices by article 104(1) and (2) of the Constitution, there is no other option and the Supreme Court is paralyzed by vacancy of Justices. While this problem is also happening in the Constitutional Court of Korea, the problem of the Supreme Court is lighter than that of Constitutional Court, because the Supreme Court only requires simple majority for any decision by article 66(1) of the Act. Yet the Constitutional Court should have more at least six Justices to make upholding decision by article 113(1) of the Constitution.