The KCC flexed its judicial muscles by striking down a statute proposed as an
election manifesto and later confirmed by the legislature.
However, the KCC is vigilant about when to use a margin of appreciation
regarding the legislature or the executive branch, especially if a decision carries
political ramifications. For example, the KCC did not nullify the passage of the
Newspapers Act and the Broadcasting Act in theMedia Lawscase, though it found
that the rights to deliberation and vote of a number of assemblymen were infringed
in the course of summary resolution by the majority assemblymen.^8 In addition,
the KCC tends to avoid hard cases by applying strict standing rules. For example,
it dismissed a competence dispute raised by minority assemblymen arguing that
an international trade agreement did not get the allegedly required consent of
the National Assembly. The KCC ruled that without explicit statutory provision,
the minority of the National Assembly cannot represent the legislature, so that they
cannot bring a competence dispute in the name of the National Assembly in its
entirety.
9
Furthermore, the KCC happens to restrain its power only because, once
procedural requirements are met, executive or legislative decisions of a highly
political character such as the dispatch of national military forces to overseas
regions should be respected.
10
iii. developments in judicial and constitutional
adjudication proceedings since 2000Major constitutional-law cases in relation to governmental
and political arrangementsNullification of presidential emergency decree under the 1972 constitution
In 2010 , the Korean Supreme Court (KSC) drew public attention by nullifying a
presidential emergency decree under the 1972 constitution (the so-called “Yushin”^11
Constitution).^12 This decision was a dramatic change from its previous view that it
could not review such decrees partly because Article 53 ( 4 ) of the 1972 constitution
precluded the possibility of judicial review in this regard.^13 The KSC said that the
procedural limit of the former constitution cannot block judicial review of its
(^8) Constitutional Court Decision 2009 Hun-Ra 12 , November 25 , 2010 ,Korean Constitutional
Court Reports, Vol. 22 ,No 2 , Part 2 , 320.
(^9) Constitutional Court Decision 2005 Hun-Ra 8 , July 26 , 2007 ,Korean Constitutional Court
Reports, Vol. 19 ,No 2 , 26.
(^10) Constitutional Court Decision 2003 Hun-Ma 814 , April 29 , 2004 ,Korean Constitutional
Court Reports, Vol. 16 ,No 1 , 601.
(^11) LiterallyYushinmeans revitalizing reforms, but in reality it is a counterconstitutionalist
regime in the name of “Korean-style democracy.”
(^12) Supreme Court Decision 2010 Do 5986 (en banc), December 16 , 2010.
(^13) Supreme Court Decision 74 Do 3510 (en banc), March 22 , 1997 ; Supreme Court Decision
77 Mo 19 (en banc), May 13 , 1977.