the constitutional adjudication system has been considerably activated since the
establishment of the Korean Constitutional Court (KCC) in 1988 ; and in the first
decade of the twenty-first century, the KCC finally emerged as an influential
branch of government to shape the political landscape and the national agenda.
Indeed, two KCC decisions of 2004 are noteworthy. The first case is the
presidential impeachment trial, since 1948. In this case, the KCC ruled that it is
entrusted with the power to decide whether the president and high-profile public
officials should be impeached even if they are found to have committed wrong-
doings in their official activities. According to this view, based upon constitutional
interpretation rather than explicit constitutional or statutory provision, Roh Moo-
hyun regained his power though the KCC recognized that he had violated consti-
tutional and statutory obligations on three counts.^5 The KCC distinguished
between the president and other officials in determining whether the actual viola-
tion was of the required level of gravity because, since he is the head of state as well
as the head of the executive elected directly by the people, the dismissal of the
president can cause much greater change in the working of constitutional arrange-
ments and political conflicts. However, there have been strong criticisms of the
court’s findings of violation because it related to political suggestion and political
speeches that can be justified on the ground of his personal freedom of speech and
constitutional status as a national political leader.
6
The second case showing the empowered status of the KCC is the notorious
Relocation of the Capitalcase.
7
The movement of major governmental agencies
and departments was one of the key issues in the 2002 presidential election. As
soon as he was elected, President Roh Moo-hyun proposed a bill for the reloca-
tion of the capital and this bill was successfully passed in the course of political
negotiation between the ruling Open Uri Party and the main opposition Grand
National Party (GNP), though there were a group of dissident assemblymen in
the GNP. The dissenters made a constitutional complaint before the KCC, which
was surprisingly upheld in a four-stage judgment: first, the proposition that Seoul
is the capital of the Republic of Korea must be recognized as a kind of customary
constitution with the same effect as written constitutional provisions; second, this
constitutional custom should be changed through a constitutional amendment
procedure; third, the enactment of a statute with the effect of de facto relocating
the capital violates this required procedure; and finally this violation infringes
citizens’ right to referendum as a requisite of constitutional amendment.
(^5) Constitutional Court Decision 2004 Hun-Na 1 , May 14 , 2004 ,Korean Constitutional Court
Reports, Vol. 16 ,No 1 , 609.
(^6) See Jongcheol Kim, “What does the Korean Constitutional Court miss or misunderstand
in the impeachment trial against President Roh Moo-hyun?” (in Korean) ( 2004 ) 9 World
Constitutional Law Review 1.
(^7) Constitutional Court Decision 2004 Hun-Ma 554 , October 21 , 2004 ,Korean Constitutional
Court Reports, Vol. 16 ,No 2 , Part 2 , 1.