헌법재판소 구성방법의 개혁론

A Proposal for Reform in the Composition of the Constitutional Court

Judicialization of politics is a relatively recent trend in Koran constitutional reality, the center of which is the Constitutional Court. The author argues that one preliminary institutional requirement of this new practice is social diversity of the institution taking in charge of constitution-based review of legislative and administrative actions. Three principles are taken on board for this argument: (1) principle of democracy reflected in particular in Art. 1 of the Constitution, (2) principle of professionality represented in Art. 111 Sec. 2 as well as Art. 101 Sec. 1, and (3) principle of independence enshrined in the separation of power as a basic element of constitutionalism. Applying these principles to Korean constitutional arrangement and reality, the author specifies a reform plan which contains five main proposals. Firstly, term of constitutional justices is changed from 6 years term with possibility of reappointment to 9 years with no possibility of reappointment. And one third of constitutional justices are chosen in three years gap. Secondly, Justices are appointed by the President on the approval of the National Assembly. One third of justices should be appointed following the nomination of the Conference of the Supreme Court Justices. Thirdly, the membership of the Court should be open to those with diverse social and professional background, though two third of justices should be qualified as judges. Fourthly, the number of constitutional justice should be delegated to the legislature rather than specified in the Constitution. Fifthly, a kind of spare justice or Ersatzmitglieder system need to be introduced.