The judicial branch refers to the national authority that exercises judicial power separate from the administrative and the legislative branch. Article 101 of the Korean Constitutional law stipulates that judicial power belongs to court consisting of judges to promote the rule of law and the Article 27 further states that all citizens possess the right to have fair and prompt trial by legitimate legal procedures.
The article 103 stipulates that judges should follow the Constitution, law and regulation and conscience to declare judicial independence. It is one of the most symbolic parts of a nation that faithfully respects the rule of law and is the request for the separation of three branches. It enables the judicial branch to serve as a bastion that protects the basic right of citizens.
The Courts are provided with the power to judge all legal disputes unless otherwise provided by the Constitution. The exceptions are found where the Constitution vests the power to judge some constitutional issues in the Constitutional Court and vests the power to examine the qualifications and/or to take disciplinary measures against lawmakers in the National Assembly. The courts shall also exercise the power to administer and supervise extra-judicial matters such as immovable and movable property registration, corporation registration, family registration, deposit, and the duties of marshal.
There are six types of courts in Korea, which are the Supreme Court, High Court, District Court, Patent Court, Family Court, and Administrative Court. The Korean judicial system is based on the three instance trial system, which is composed of district courts, the high courts and the Supreme Court. Other courts exercise specialized functions with the Patent Court positioned on the same level as the high courts and the family court and the administrative court positioned on the same level as the district courts.
A district court and the family court may establish branch courts, municipal courts and Registration Offices or any one or more of the three institutions if additional support is necessary to carry out their tasks. A branch court of both the district court and the family court may be established within the same court complex.
There is also other special court as the martial court. The difference between martial court and non-martial court is that military officers who are not qualified as judges hear cases in martial court, whereas in non-martial court only judges may adjudicate cases. However, including military trials, the Supreme Court has final appellate jurisdiction over all cases
The Constitutional Court handles constitutional issues such as the constitutionality of a law, impeachment, dissolution of a political party, constitutional petitions filed directly to the Constitutional Court, and jurisdictional conflicts involving State agencies and/or local governments.
While the Constitutional Court retains jurisdictions to decide the constitutionality of a law, other courts have some role in this process. When the constitutionality issue of a law, which is to be applied to a concrete case becomes a precondition of a court's judgment and the court deems the law to be in contravention of the Constitution, the court shall request, of its own motion or according to the application of the parties, adjudication of the Constitutional Court as to the constitutionality of that law. The Constitutional Court then adjudicates this issue. When the court deems a law is not unconstitutional, the court will apply the law to a concrete case without asking for adjudication of the Constitutional Court. Three factors are necessary to deem an issue of a law's constitutionality a precondition of a court's judgment: first, a concrete case is pending before the court, second, a law applies to the concrete case and third, the law's constitutionality affects the outcome of the decision. Such laws or articles thereof as decided unconstitutional by the Constitutional Court shall lose their force from the day the decision is given. However, the laws or articles thereof, which contain penalties, shall lose their force retroactively. When the court refuses to refer a case to the Constitutional Court, a petitioner may file a case directly to the Constitutional Court.
The Chief Justice of the Supreme Court takes part in forming the benches of the Constitutional Court. All nine Justices of the Constitutional Court are appointed by the President of the Republic. But three are elected by the National Assembly, and three are designated by the Chief Justice of the Supreme Court.
Except in military courts, adjudication including hearings and rendering judgment is presided by a judge. Case trials are presided either by a single judge or a panel of three judges. As for selected criminal cases, lay participation trials will be implemented on a pilot basis from January 2008. "Lay Participation Committee" to be formed in 2010, will be composed of members from legal probationers, academia, and NGO groups. The Committee will design a final form of Lay Participation System to be implemented starting 2012, utilizing the evaluations from the Pilot system. Lay Participation will be applied to serious criminal cases at first. Applicability of the Lay Participation System to other types of cases will be determined after reviewing the Lay Participation's application to criminal cases. The final form of the lay participation trials particularly suited for the Korean judiciary is planning to be launched by 2012. This was the result of efforts toward continuous judicial reform to induce public participation in the judiciary in the context of promoting the spirit of judicial democracy.
In general, all hearings and rendering of judgments are open to the public. However, if there is any possibility that opening of hearings to the public could be subject to impairing national security, public peace and order, or be contrary to good morals; the court may decide to close the hearings to the public. In either case, rendering of judgments must be open to the public under all circumstances.
Videotaping, taking photographs or live broadcasting in a courtroom without prior permission of the presiding judge is not permissible.
The court may confine for not more than 20 days, or fine for not more than 1 million Korean won (approximately US$ 887 as of October 2015), or both on a person who interrupts the conduct of a trial by harsh language, disturbance, etc.
The court conducts its affairs in Korean. Interpretation can be arranged whenever deemed necessary.