Introduction
The judicial branch is the national authority that exercises judicial power independently of the legislative and executive branches. To uphold the rule of law, Article 101 of the Constitution of the Republic of Korea stipulates that judicial power shall be vested in courts composed of judges. Article 27 further guarantees all citizens the right to a fair and prompt trial through due legal procedures.
Article 103 of the Constitution states that judges must base their rulings on the Constitution, laws, and regulations and act according to their conscience to uphold judicial independence. This principle is a fundamental symbol of a nation committed to the rule of law and the separation of powers among the three branches of government. It empowers the judiciary to serve as a guardian of citizens’ fundamental rights.
The courts are granted the authority to adjudicate all legal disputes unless the Constitution specifies otherwise. Exceptions exist where the Constitution assigns the authority to resolve certain constitutional issues to the Constitutional Court and grants the National Assembly the power to evaluate the qualifications of lawmakers or to impose disciplinary measures against them. Additionally, the courts administer and oversee extrajudicial matters, including the registration of immovable and movable property, the registration of corporations, family registration, deposits, and the duties of marshals.
There are six types of courts in Korea: the Supreme Court, High Courts, District Courts, Intellectual Property High Court, Family Courts, and the Administrative Court. The Korean judicial system follows a three-instance trial structure, consisting of District Courts, High Courts, and the Supreme Court. Among these, the Intellectual Property High Court operates at the level of a High Court, and the Family Courts and the Administrative Court function as specialized courts at the same level as District Courts.
A district court and a family court may establish branch courts, municipal courts, or registration offices, or any combination of these institutions, if additional support is necessary to fulfill their responsibilities. A branch court for both the district court and the family court can be established within the same court complex.
Additionally, there is a special type of court known as a martial court. The key difference between a martial court and a non-martial court is that cases in a martial court are heard by military officers who are not qualified to serve as judges. In a non-martial court, only qualified judges can adjudicate cases. However, including cases involving military trials, the Supreme Court has final appellate jurisdiction over all cases.
The Constitutional Court deals with constitutional matters, including the constitutionality of laws, impeachment proceedings, the dissolution of political parties, constitutional petitions submitted directly to the Court, and jurisdictional conflicts involving state agencies and local governments.
The Constitutional Court has the authority to determine whether a law is constitutional. However, other courts also play a role in this process. If a court is faced with a specific case where the constitutionality of a law is an issue, and the court believes that the law contradicts the Constitution, it must request a determination from the Constitutional Court regarding that law's constitutionality. This request can be made either on the court's initiative or upon application by the parties involved. The Constitutional Court will then adjudicate the issue.
When the Court determines that a law is not unconstitutional, it proceeds to apply the law to the case at hand without requesting adjudication from the Constitutional Court. For a question of constitutionality to be considered a precondition for a court's judgment, three criteria must be met: a case must be pending before the Court, the law in question must apply to that case, and the constitutionality of the law must directly affect the outcome of the judgment.
If the Constitutional Court rules that a law or any of its provisions is unconstitutional, the law or provision becomes null and void from the date of the decision. However, in cases involving penal provisions, the invalidation applies retroactively. If a court decides not to refer a constitutional question to the Constitutional Court, the petitioner retains the right to file the case directly with the Constitutional Court.
In terms of appointments for the Justices of the Constitutional Court, the Chief Justice of the Supreme Court is involved in forming the benches of the Constitutional Court. All nine Justices are appointed by the President of the Republic. Of these, three Justices are elected by the National Assembly, while the Chief Justice of the Supreme Court designates three Justices.
In Korea, court hearings and verdicts are generally open to the public. This helps ensure transparency in the justice system. However, if a hearing could harm national security or disrupt public order, the judge may decide to hold it behind closed doors. Even in such cases, the final judgment is always announced publicly.
In judicial proceedings, cases are decided by either a single judge or a panel of judges, depending on the case type. Since 2008, the Citizen Participation in Criminal Trials system has allowed citizens to serve as jurors in certain criminal cases, strengthening public engagement and transparency in the judicial process.
The jury trial
Korea’s jury system, known as Citizen Participation Trials, incorporates elements from both the American jury system and the German lay judge model. These trials take place at the request of the defendant in certain criminal cases and aim to promote transparency, public trust, and civic engagement in the judicial process.
Key Features include:
- Independent Verdict: The jury deliberates and delivers its own verdict, independent of the judge’s opinion.
- Judge’s Guidance if Deadlocked: If the jury cannot reach a unanimous verdict, they must review the judge’s assessment of the evidence before re-evaluating.
- Majority Verdicts: If consensus still cannot be reached, a majority vote may determine the final verdict.
- Sentencing Opinions: The jury may also provide non-binding recommendations on sentencing.
- Judicial Discretion: The judge presiding over the case is not bound by the jury’s verdict or sentencing recommendation and retains final decision-making authority.
- Independent Verdict: The jury deliberates and delivers its own verdict, independent of the judge’s opinion.
- Judge’s Guidance if Deadlocked: If the jury cannot reach a unanimous verdict, they must review the judge’s assessment of the evidence before re-evaluating.
- Majority Verdicts: If consensus still cannot be reached, a majority vote may determine the final verdict.
- Sentencing Opinions: The jury may also provide non-binding recommendations on sentencing.
- Judicial Discretion: The judge presiding over the case is not bound by the jury’s verdict or sentencing recommendation and retains final decision-making authority.
Appealing a Decision
If either the plaintiff or the defendant disagrees with a trial court's decision, they have the right to appeal. Generally, appeals are reviewed by a higher court. However, if the case was initially tried by a single judge, the appeal may be handled by the appellate division of the same district court instead of a higher-level court.
If a party is dissatisfied with the appellate decision, they may file a further appeal to the Supreme Court, which is the highest court in Korea. The Supreme Court only reviews legal issues, not questions of fact. Therefore, appeals to the Supreme Court must pertain to matters of civil or criminal procedure or involve other legal interpretations.
What to Expect in Court
Judicial proceedings in Korea are conducted in Korean. However, interpretation services are available for parties and witnesses who speak other languages. To support this effort, the Court Translation Center has recently been established. It currently provides interpretation in Chinese, Vietnamese, Russian, and English, with plans to expand to additional languages as necessary. In a courtroom, videotaping, photographing, or live broadcasting is only permitted with the judge's approval. Anyone who disrupts judicial proceedings-whether through verbal outbursts or other forms of misconduct-may face consequences including up to 20 days of detention or an administrative fine of up to 1 million Korean won (approximately USD 667, based on an exchange rate of 1,500 KRW per USD). This is in accordance with Article 61, Paragraph 1 of the Court Organization Act.
