Constitutional Court of Korea Rules Impeachment Trial Lacking a Quorum can Commence

The Constitutional Court of Korea, a court that I worked for in my early years as a lawyer (first lawyer to work for the Korean court system), ruled that the Impeachment Trial of the chair of the Korea Communications Commission may proceed even though the Court lacks a quorum. This case is a major precedent in the history of the Court.

The Chair of the Korea Communications Commission was impeached by the National Assembly of Korea. The Constitutional Court is the final arbiter of impeachment disputes after impeachment articles are passed by the National Assembly. The Chair filed a constitutional petition to the Constitutional Court claiming that Article 23, Paragraph 1 of the Constitutional Court Act, which stipulates that a case be tried by at least seven justices, infringed on the right to a trial. The Chair simultaneously filed an application for an injunction seeking the suspension of the effect of the above provision until the final decision on the main case is made.

On October 17, 2024 the terms of the Chief Justice and two justices expired, thus leaving the Court with six justices. However, according to the Court, in the case where a justice’s position becomes vacant due to the expiration of a justice’s term, impeachment trials can commence even with the quorum of seven justices.

Article 23, Paragraph 1 of the Korean Constitutional Court Act stipulates that “the bench shall deliberate a case with the attendance of at least seven justices.” Even with the clear wording of the clause, the Constitutional Court of Korea unanimously decided on October 14, 2024 that the impeachment trial may proceed (2024 Heon-Ma 900).

The Constitutional Court opined that:

“Whether Article 23, Paragraph 1 of the Constitutional Court Act infringes upon the applicant’s right to a trial, etc. needs to be determined through a substantive trial, and it is currently certain that a violation of basic rights under the above provision will occur when three justices retire on October 17, 2024. . . Therefore, it is difficult to view the injunction application in this case as a case where the substantive trial is clearly unlawful or without reason. . . The applicant, who has been impeached by the National Assembly, has his/her authority suspended until the Constitutional Court holds an impeachment trial, but if the case cannot even be tried according to Article 23, Paragraph 1 of the Constitutional Court Act, this is an excessive restriction on the applicant’s right to a speedy trial. Ultimately, the applicant is at risk of suffering serious, irreparable damage due to Article 23, Paragraph 1 of the Constitutional Court Act, and there is an urgent need to prevent damage as the retirement of three justices is imminent. . .even if an injunction is granted, this is only about the quorum for deliberation and not the quorum for a resolution, so a decision can be made after waiting for the vacant judge to be appointed. However, in order to make a faster decision, it is necessary to move the case along by organizing the issues and examining evidence before the successor judge is appointed. If the application for an injunction is dismissed, even if the claim is accepted in the final decision of the main trial, the applicant’s right to a speedy trial and other basic rights have already been violated because these procedures will not be completed in a timely manner, making it very difficult to restore them. Ultimately, in this case, the disadvantage that would occur if the injunction were granted and the claim was dismissed in the final decision is greater than the disadvantage that would occur if the injunction were dismissed and the claim was accepted.”

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw, and IPG Legal is consistently ranked Top Dispute Resolution Law for our litigation services.

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