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In the past decades, the Korean Constitutional Court (KCC) has become one of main actors in political process. It has been invited by various political, social, and economic forces to make important decisions. This study, first, carries out general analysis on the political roles of the KCC. That is, this study tries to categorize a lot of its decisions into three domains: decisions concerning pursuit of institutional self-interest and expansion of its authority; decisions on conflicting issues of the Korean society; decisions on political rules of game. Second, it examines various flaws, contradictions, and vacuums regarding the Constitutional Court system imbedded in the Korean Constitution. Finally, it concludes that, because of the incongruity between increasingly important roles the KCC has come to play in the Korean society and flaws of the Korean constitutional system regarding the KCC, and unwillingness or incapacity of politicians to reform the constitutional system, constitutional democracy of Korea has fallen into a dilemma.
Key Words: Constitutional Court, Political function, Judicialization of politics, Korean politics, Judicial Review, institutional defects.
I.Raising the Issue
The Supreme Court of the United States is part of the government of the United States (Saphiro and Sweet, 2002: 5). Such a comment can now be applied to the Korean Constitutional Court. The Court which was established after the 1987 democratization is not an isolated judicial organ, but plays a central role in the political process. Ginsburg, comparing judicial reviews of East Asian countries - Mongolia, Taiwan, and Korea, evaluates that the KCC (Korean Constitutional Court) is the case where it has achieved so-called high equilibrium of judicial review,1 and it is the most successful among those of the three countries (Ginsburg, 2003: 242-243). Hirschl (2008: 126) describes Korea as the case where judicialization of mega politics2 has happened, citing the 2004 dismissal by the Constitutional Court of the impeachment of President Roh Moo-hyun. Furthermore, in Park Geun-hye administration, the Political Party Dissolution Case (the Jinbo party dissolution case in 2004) were transferred to the Constitutional Court, and the Court adjudicated on those cases. In the process, the court has become to exercise its jurisdiction3 in all the domains given to it by the Constitution. Now, the Korean Constitutional Court has passed beyond the stage of institutionalization, emerging...