Constitutional research officials from South Korea pressed current and former counterparts from Germany's Federal Constitutional Court with questions at the Constitutional Court in Seoul's Jongno district on the morning of the 1st. Germany has operated a system allowing constitutional complaints against court rulings since its constitutional adjudication system was launched in 1951, building up decades of operational experience. The two sides exchanged views on a wide range of topics, from contested issues surrounding the system to practical difficulties. Questions focused in particular on how the constitutional court defines its relationship with the judiciary.
The relationship between the Constitutional Court and the judiciary was on the agenda. The Korean side asked how Germany responds when courts disregard the binding force of a constitutional court decision after a ruling has been overturned, or reach effectively the same conclusion again.
The German side said there is no need to view a court reaching a similar conclusion again as a conflict between the constitutional court and the judiciary. It described the process as one of giving concrete shape to constitutional standards, noting that trial and error can occur in implementing constitutional requirements. In a case involving the Vienna Convention on Consular Relations, the Federal Court of Justice required two rounds of reversals by the constitutional court before arriving at a solution. "Rather than conflict, we see it as a learning process or a dialogic process in which constitutional standards are made concrete," the German side said.
The Korean side also asked whether there is a framework governing how courts handle cases after the German constitutional court overturns a ruling. The German side explained that once a case returns to the courts, the constitutional court in principle does not become involved again. It reviews the matter only if a new constitutional question arises and a party files another constitutional complaint. The German side added that there is no mechanism to track or monitor how courts actually rule after a reversal. Nor is the structure one in which the panel that issued the original ruling participates as a party to defend its own judgment. "Opinions can be submitted in writing, but there are no cases of judges appearing in person at oral hearings to state their views," the German side said.
Another question addressed how far the German constitutional court can steer subsequent proceedings through a decision overturning a ruling. In Germany, some decisions set out reasoning in such detail that the conclusion of the remanding court appears largely predetermined. The German side said this "varies depending on the nature of the case, the panel and the disposition of the presiding justice."
Questions also turned to concrete applications of the so-called Heck's formula, applied when reviewing whether to overturn a ruling. The German side said the constitutional court does not review every error of legal interpretation by specialized courts, but examines whether a court fundamentally misapprehended the meaning and significance of a fundamental right. Cases in which a lower court failed to consider a relevant fundamental right are typical candidates for review, it said, and a constitutional issue can also arise where a court significantly misjudged the weight of a fundamental right in balancing interests.
In opening remarks, Constitutional Court President Kim Sang-hwan said the court, launched in 1988, marked its 38th anniversary that day. "Over that time we have issued many decisions expanding the fundamental rights of citizens, and in matters drawing intense public attention, such as presidential impeachment trials and party dissolution cases, we have handed down important decisions on constitutional questions that confirmed and reaffirmed the constitution as society's supreme norm," Kim said. Kim added that South Korea has newly introduced a system allowing constitutional complaints against court rulings. "For the Korean Constitutional Court, which faces a new constitutional task, Germany's experience will be a very valuable reference," Kim said.
German constitutional research officials select one country each year and meet officials at that country's constitutional institutions and legal education bodies to learn about its major constitutional and legal issues. This year they chose South Korea and asked to discuss key matters, and the Korean Constitutional Court agreed, leading to the meeting. Justice Kim Hyung-du also discussed the court's role and powers and the constitutional adjudication system with the German side. Kim Sang-hwan is scheduled to visit Germany next year at the invitation of Stephan Harbarth, president of Germany's Federal Constitutional Court.
