IP & Art

The adjudication of trial by constitutional court  refers to the procedure for redressing constitutional complaints against a trial. This is a trial conducted by the Constitutional Court in accordance with the petitioner's request for adjudication on a constitutional complaint if the petitioner's basic rights are infringed due to the exercise or non-exercise of the court's jurisdiction.

The Constitutional Court is a judicial body that examines and judges whether it is in accordance with the Constitution or unconstitutional. Article 68 (1) of the Constitutional Court Act stipulates that a person whose basic rights guaranteed by the Constitution have been infringed by the exercise or non-exercise of public power may file a constitutional complaint with the Constitutional Court, except for a judgment in the courts. A constitutional complaint is a constitutional adjudication procedure that requests relief when the fundamental rights under the Constitution are violated by the exercise of public power. This includes both legislative and administrative functions. However, there have been exceptions to court rulings. This is because the court's authority has been recognized as the final legal interpretation agency.

Adopted by Germany, Spain, France, etc.

The issue of introducing the adjudication of trial by constitutional court has been one of the long-standing problems in the legal world. The core of the debate is whether the Constitutional Court needs to exercise constitutional control over the courts. Historically, the constitutional complaint is a system that was created and developed in response to the fact that the independence of the judiciary was broken and the human rights violations committed by the judiciary during the Hitler era in Germany. It was established as a legal system by the Federal Constitutional Court in 1951. It is widely recognized in Germany, the Czech Republic, Spain, and France.

On the other hand, countries such as Austria do not recognize the adjudication of trial by constitutional court. This is because the civil and criminal supreme courts, administrative courts, and constitutional courts have established themselves as independent and equal constitutional institutions. In the United States, the issue of the introduction of the adjudication of trial by constitutional court is not controversial because the Federal Supreme Court is in charge of the Constitutional Court at the same time, so there is no conflict between them. Even if introduced, there is little practical benefit.

There are arguments for and against the fact that the Constitutional Court excludes court decisions from the subject of constitutional complaints. First, the argument for unconstitutionality (argument in favor of the adjudication of trial by constitutional court) argues that violations of basic rights by judicial action, one of the exercise of public power, should be subject to constitutional complaints, of course, in terms of guaranteeing equal rights, as in the legislative and administrative actions. The court's judgments and decisions can also be contrary to the spirit of the Constitution, so it is necessary to seek relief through a constitutional complaint.

Those who oppose this first emphasize that whether or not to review the court's judgment as the subject of a constitutional complaint belongs to the freedom of the legislature, and the Supreme Court has the final judgment on the judicial procedure in the interpretation of our Constitution. It also argues that the adjudication of trial by constitutional court has the effect of acknowledging the fourth trial, so it is not in line with our legal order, which has adopted the three-trial system. In addition, there is a realistic concern that if introduced, it could become a “litigation republic.” The Supreme Court, a party to the controversy, also opposes the introduction of the adjudication of trial by constitutional court for similar reasons. Neither of the arguments in favor of it nor the logic of the opposing side are wrong.

However, the Constitutional Court appears to take a neutral position. Their allegation will be summarized as follows. The statutory provision that excludes court judgments from the review of constitutional complaints does not, in principle, violate the Constitution. For example, it is argued that the results of a trial by applying laws and regulations determined by the Constitutional Court to be unconstitutional may infringe on the basic rights of the people and would trigger the subject of a constitutional complaint. In fact, it looks like a limited proposition.

However, I think that in the perspective of judicial consumer, any judicial ruling should be subject of adjudication by the constitutional court in terms of strict scrutiny is dictated for any violation of the human rights under the constitutional law.