2004HunMa554 Relocation of the Capital City

by Constitutional Court of Korea

Background of the Case

As one of the election pledges, Roh Moo-Hyun, who was then the presidential candidate of the New Millenium Democratic Party, announced the plan to relocate the administrative function of the capital that 'the Blue House and the governmental ministries will be moved to the Chungcheong area as a curb on the concentration and overpopulation at the capital and a solution for the lagging local economy.' Roh Moo-Hyun was elected as the President at the 16th presidential election held on December 19, 2002.

Subsequently, the bill for the Special Act on the Establishment of the New Administrative Capital to transfer the administrative function of the capital to the Chungcheong area, which was proposed by the administration, was enacted at the National Assembly, and the Special Act on the Establishment of the New Administrative Capital was promulgated on January 16, 2004.

The complainants in this case, who are Korean citizens domiciled across the nation, filed the constitutional complaint in this case on grounds that the above Act was unconstitutional in its entirety as it was an attempt to relocate the nation's capital without revision of the Constitution, and that the Act violated the right to vote on referendum and the right of taxpayers.

Summary of the Decision

The Constitutional Court, in an 8:1 opinion, held the Act unconstitutional, with a separate concurring opinion of one Justice. The grounds for the Court's opinion are summarized as follows:

1. Majority Opinion of Seven Justices

The Act at issue in this case determines the transfer of the capital of the nation, which falls within the meaning of the capital under the Constitution as the location of national institutions that perform pivotal functions of politics and administration of the nation. As such, the transfer of a new administrative capital pursuant to the Act at issue in this case means the transfer of the capital of the Republic of Korea.

The establishment or relocation of the capital is the geographical placement of the basis of the nation's organization and structure through determination of the location of the highest constitutional institutions such as the National Assembly and the President, and is thus a fundamental decision by the citizens concerning the nation, and, at the same time, a core constitutional matter that forms the basis for the establishment of a nation.

There is no express provision in our Constitution that states 'Seoul is the capital.' However, that Seoul is the capital of our nation is a continuing practice concerning the life in the national realm of our nation for a period of over six-hundred years since the Chosun Dynasty period. Such practice should be deemed to be a fundamental matter in the nation that has achieved national consensus from its uninterrupted continuance over a long period of time. Therefore, that Seoul is the capital is a constitutional custom that has traditionally existed since even prior to the establishment of our written Constitution, and a norm that is clear in itself and a premise upon which the Constitution is based although not stated in an express provision in our Constitution. As such, it is part of the unwritten constitution established in the form of a constitutional custom.

Constitutional custom is also part of the constitution and is endowed with the same effect as that of the written constitution. Thus, such legal norm may at the least be revised only by way of constitutional revision pursuant to Article 130 of the Constitution. That Seoul is the capital of our nation is unwritten constitutional custom, and, therefore, retains its effect as constitutional law unless invalidated by establishment of a new constitutional provision ordaining a new capital through the constitutional revision procedure. On the other hand, other than through formal constitutional revision, a constitutional custom may lose its legal effect by loss of the national consensus that supports it. However, in this case, such circumstance is not found.

Pursuant to Article 130 of the Constitution, national referendum is mandatory for the constitutional revision. Therefore, the citizenry has the right to express its opinion with respect to the constitutional revision through a binary pro-and-con vote. Here, the Act at issue in this case realizes the transfer of the capital, which is a matter to be undertaken by the constitutional revision, merely in the form of a simple statute without following the constitutional revision procedure. Thus, the Act is in violation of the Constitution as it excludes the exercise of the right to vote on referendum, thereby violating such right, which is a fundamental right to participate in politics retained by the people at the constitutional revision pursuant to Article 130 of the Constitution.

2. Separate Concurring Opinion of One Justice

Article 72 of the Constitution provides that "the President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary." The decision to transfer the capital falls within the meaning of the 'important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny,' and, is therefore a matter to be determined by referendum.

The act by the President of submitting a matter to the referendum is a deferred discretionary act. However, the act of not submitting the decision to relocate the capital to the referendum is a deviation and an abuse of discretion, and is in violation of Article 72 of the Constitution that is the legal basis of the endowment of the discretion.

Should the President exercise the discretion in a lawful way, the only possible choice would be to bring the decision to relocate the capital before the referendum. Therefore, the President is obligated to submit this matter to the referendum, and the Korean citizens in turn have the right to request the submission of this matter to the referendum as they have a specific right to vote on referendum even prior to the actual submission by the President.

The Act at issue in this case unequivocally and conclusively excludes the referendum in determining the intention to relocate the capital. The complainants, who are Korean citizens, were therefore deprived of the right to vote on referendum of Article 72 of the Constitution by the enactment and enforcement of the Act at issue in this case.

3. Dissenting Opinion of One Justice

In a legal system under a written constitution, customary constitutional law may not be established or maintained apart from the written constitution, and, instead, is always given no more than supplementary effect as it may be established and maintained only when harmonized with various principles of the written constitution.

Also, the constitutional revision is a concept that pertains to the constitution in the formal sense, i.e., the written constitution. Therefore, the change of the customary constitutional law does not belong to constitutional revision, and may occur through the enactment or the revision of the statute that is the procedure for representative democracy established by the Constitution. In the case of a change in constitutional custom such as the transfer of the capital, as there is no particular constitutional provision that prohibits this, it may be done by the enactment of the statute by the National Assembly. Therefore, there is no possibility that the Act at issue in this case violates the right to vote on referendum under Article 130, Section 2, of the Constitution.

On the other hand, Article 72 of the Constitution endows the President with the discretion of whether or not to submit an 'important policy concerning the national security' to the referendum, which may not be interpreted to the effect that such discretion varies according to the significance of the matter. Further, such discretion is endowed directly by the Constitution. Thus, the legal principle of deviation and abuse of discretion of the administrative law may not apply. Therefore, there is no possibility that the right to vote on referendum of Article 72 of the Constitution is violated in this case. To conclude, the assertion of the complainants of the violation of the right to vote on referendum is unjustified, as the possibility of violation of the asserted right itself is lacking.

Aftermath of the Case

As the Special Act on the Establishment of the New Administrative Capital was held unconstitutional by the Constitutional Court, as an alternative reflecting the decision of the Constitutional Court and realizing at the same time the division of powers and the purpose and the intended effect of relieving overpopulation in the capital area, a new special act of the Special Act for the Construction of an Administrative-Function Hub City in the Yeongi-Gongju Area as a Countermeasure to the New Administrative Capital was enacted on March 2, 2005 and promulgated on the 18th of the same month, to establish an administrative-function hub city in the Yeongi and Gongju area of South Chungcheong Province and to relocate thereto all administrative institutions of the central government with the exception of six government ministries of the Ministry of Unification, the Ministry of Foreign Affairs and Trade, the Ministry of Justice, the Ministry of National Defense, the Ministry of Government Administration and Home Affairs, and the Ministry of Gender Equality and Family. A separate constitutional complaint was filed on April 27, 2005 and is currently pending seeking to confirm the unconstitutionality of the subsequent Act, on the ground that the above subsequent Act splits the capital in two, thereby causing temporal and geographical inefficiency in the administration of national affairs and decrease in national competitiveness.

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Parties

Complainants

1. Choi ○ Chul, and 168 other(the list of the complainants is attached as Appendix Ⅰ; 2004Hun-Ma554)

• Counsel of Record: Shinchon Law Firm
• Counsel in Charge: Kim Moon-Hee, and 1 other
• Counsel of Record includes Lee Seok-Yon

2. Chung ○ Myung(2004Hun-Ma566)

• Counsel of Record, Court-appointed counsel: Kim Young-Jin
• Supplementary Participants:
• Lim ○ Soo, and 229 other(the list of Supplementary Participants is attached as Appendix Ⅱ)
• Counsel of Record: Shinchon Law Firm
• Counsel in Charge: Kim Moon-Hee, and 1 other
• Counsel of Record includes Lee Seok-Yon

Holding

The Special Act on the Establishment of the New Administrative

Capital(January 16, 2004, Public Act No. 7062) is unconstitutional.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) On September 30, 2002, the then presidential candidate of the New Millenium Democratic Party, Roh Moo-Hyun, announced a plan, as an election pledge, to relocate the administrative function of the capital by moving 'the Blue House and the government ministries to the Chungcheong area as a curb on the concentration and overpopulation of the capital and a solution for the lagging local economy.' Roh Moo-Hyun was elected as the President at the 16th presidential election held on December 19, 2002. In April 2003, the Decree on the Composition and the Management of the Organization for the Planning of the New Administrative Capital and Others(April 17, 2003, Presidential Decree No. 17967) was issued, and, pursuant to the above presidential decree, the Organization for the Planning of the New Administrative Capital and the Organization for the Support of the New Administrative Capital were established under the Blue House and the Ministry of Construction and Transportation, respectively, which performed the tasks of drafting the policies with respect to the construction of the new administrative capital and of searching out the candidate sites therefor.

(2) In October 2003, the administration proposed the bill for the Special Act on the Establishment of the New Administrative Capital. On December 29, 2003, the National Assembly plenary session passed this bill by the votes of 167 members favoring the legislation out of 194 members who participated in voting(with 13 votes in opposition and 14 votes in abstention). On January 16, 2004, the Special Act on the Establishment of the New Administrative Capital was promulgated as Public Act No. 7062, and, pursuant to the supplementary provision to the Act, was enforced in 3 months therefrom. The above Act provides that the administrative function of the capital will be relocated to the Chungcheong area in order to rectify the adverse effect of the concentration and overpopulation in the capital and its vicinity, to promote the balanced development of the nation and to fortify national competitiveness. The Act establishes the Establishment of the New Administrative Capital Promotion Committee co-chaired by the Prime Minister and a civilian, under the President, newly adopts a special budget managed and operated by the Minister of the Ministry of Construction and Transportation, and includes the provisions to prevent uncontrolled development and speculation in real estate.

(3) Following the enforcement of the above Act, the Establishment of the New Administrative Capital Promotion Committee was established on May 21, 2004. On July 21, 2004, the above Committee, at its 5th conference, entertained and determined that, among major national institutions, 18 Bu(ministries) and 4 Cheo(ministries) and 3 Cheong(offices) of the administrative organs of the central government should be relocated to the new administrative capital, and that, with respect to the constitutional institutions such as the National Assembly, the consent of the National Assembly should be sought upon the request for transfer on their initiation. On August 11, 2004, the above Committee, at its 6th conference, finalized the Yeongi-Gongju area(approximately 7,128,000㎡ of land over Nam-myeon, Gumnam-myeon and Dong-myeon of Yeongi-gun and Janggi-myeon of Gongju city in South Chungcheong Province) as the site for the new administrative capital.

(4) The complainants are public officials and members of the City Council of Seoul Special Metropolitan City, citizens domiciled in Seoul Special Metropolitan City, and the Korean citizens domiciled across the nation. The complainants filed two separate constitutional complaints on July 12, 2004(2004Hun-Ma554) and July 15, 2004(2004Hun-Ma566) against the above Act, seeking to confirm the unconstitutionality of the above Act on grounds that the above Act is unconstitutional in its entirety as it seeks to relocate the capital without the constitutional revision procedure, and that the Act thereby violates the right to vote on referendum, the right as taxpayers, the right to hearing, the right to equality, the right to travel, the freedom of occupation, the right to serve in public office, the property right and the right to pursue happiness, of the complainants.

B. Subject Matter of Review

The subject matter of review in this case is whether the Special Act on the Establishment of the New Administrative Capital(enacted January 16, 2004, Public Act No. 7062) infringes on the basic rights of the complainants and thus violates the Constitution. The content of the Act is indicated in Appendix III.

2. Summary of the Complainants' Argument and the Opinions of the Relevant Institutions

A. Summary of the Argument of the Complainants

(1) The Act at issue in this case was enacted as a means to fulfill the election pledge of the President, and it plans and promotes the relocation of the capital. That Seoul is the capital of the Republic of Korea is part of the unwritten Constitution under the constitutional law analysis. Therefore, the transfer of the capital may be constitutionally justified only when based on the national consensus among the citizens by way of the referendum, a procedure equivalent to that for the revision of the Constitution. In addition, the Act at issue in this case pertains to the matter of significant national policy concerning national security and there was sufficient time for referendum. Therefore the referendum pursuant to Article 72 of the Constitution should have been undertaken for the enactment of the Act, yet it was not. This is in violation of the Constitution, and it has infringed the right to vote on referendum of the complainants.

(2) The colossal cost for the transfer of the capital is to be disbursed from the national budget composed by taxes paid by the citizens. Such expenditure is unconstitutional as it is in disregard of the priorities for fiscal spending and of the constitutional principles. The Act at issue in this case, which enables such unconstitutional national fiscal expenditure, infringes the right of the taxpayers that is guaranteed as the 'right not enumerated in the Constitution' under Article 37, Section 1, of the Constitution.

(3) The transfer of the capital constitutes part of the restructure scheme of the nation or national territory, in which all citizens have very great interests. Therefore, pursuant to the principle of due process, the legislative process therefor must necessarily include a process to gather various opinions from every field and social group, such as a hearing. The failure to undergo such process infringed the right to hearing of all citizens including the complainants.

(4) For the complainants who are members of the City Council and the public officials of Seoul Special Metropolitan City, it is expected as the result of the legislation of the Act at issue in this case that they will be deprived of the status and the right entitled to them as public officials of Seoul Special Metropolitan City in the course of performing their public office, which will infringe such interests. This violates their right to serve in public offices and the freedom to perform occupation.

(5) The Act at issue in this case is a statute intended to determine procedural matters for the construction of the new administrative capital. However, the Act regulates substantive matters. Moreover, the Act has the National Assembly decide with respect to the capital transfer plan prior to the approval by the President thereby implicating that the National Assembly is an institution inferior to the President, and conclusively finalizes a particular geographic area as the location for the transfer of the capital. Thus, the Act lacks structural justification that should be observed among different laws. In addition, compared with the Chungcheong area that is determined to be the location of the new capital, the Act discriminates against other regions without reasonable grounds, thereby violating the right to equality. For those complainants who reside in the capital and its vicinity, it is expected that the transfer of the capital will cause disadvantage in their economic and social life, which infringes the freedom to choose occupation and the right to pursue happiness of such complainants.

B. Opinions of the President, the Minister of Construction and Transportation, the Minister of Justice, and the Establishment of the New Administrative Capital Promotion Committee

(1) Each of the basic rights of which the complainants allege infringement lacks probability of the infringement. The content of the Act at issue in this case merely concerns general matters with respect to the implementation of the transfer of the capital and does not relate to the infringement of the basic right of the individual citizens, nor may it directly violate the basic right without intermediation of a concrete and specific act of execution. Furthermore, the Act at issue in this case was enacted by the National Assembly on December 29, 2003 and promulgated on January 16, 2004, therefore a constitutional complaint should have been filed within 90 days therefrom. However, the constitutional complaint in this case was filed beyond the time limit, on as late as July 12, 2004. Therefore, the constitutional complaint in this case is unjustified as untimely.

(2) The right to vote on referendum under Article 72 of the Constitution becomes available only upon the exercise of the President of the right to submission. Therefore, it may not be an issue in this case. Matters concerning the capital do not necessitate constitutional revision, and the fact that Seoul is the capital merely has statutory ground thus may not be deemed as unwritten constitution that has constitutional effect. In addition, revision of unwritten constitution does not require revision procedures of the Constitution. Therefore, the Act at issue in this case may not possibly violate the right to vote on referendum of Article 130 of the Constitution.

(3) Although the citizens are taxpayers, they are not endowed with the right to litigate whether or not and how the government expends the taxes in the right amount for the proper items. This may only be monitored and controlled by the National Assembly, which is the representative of the citizens. Therefore, the right of the taxpayers asserted by the complainants may not, preclusively, be infringed.

(4) The complainants allege the infringement of the right to hearing. However, during the process of drafting the bill, the government previously held a hearing, and also made a pre-announcement of legislation upon proposition of the bill to the National Assembly by the administration. Also, during the legislative process in the National Assembly, the pertinent National Assembly standing committee in charge made a resolution to forego the hearing pursuant to the National Assembly Act. Therefore, there was no violation of due process or infringement of the right to hearing.

(5) As there is no contradiction or conflict among the provisions of the Act at issue in this case or between the Act and other statutes, the Act is not in violation of the principle of structural justification. Furthermore, although the Act sets forth the Daejeon and Chungcheong area as the expected location for transfer of the capital, as there are reasonable grounds therefor such as balanced development of the nation and settlement of the concentration and overpopulation in the capital area, the Act does not violate the right to equality of the complainants.

(6) As the transfer of the capital is relevant merely to the de facto incidental economic interests of the complainants, the Act may not be deemed to infringe the freedom to choose the occupation, the right to travel, or the right to pursue happiness.

C. Opinion of the Mayor of Seoul Special Metropolitan City

The opinion of the Mayor of Seoul Special Metropolitan City is identical to the assertion of the complainants in gist, with the exception that the opinion underscores that Seoul has the history from time immemorial and the most suitable geographical condition as the capital, that relocating the capital is not an appropriate solution for the overpopulation in the capital area, and that no opportunity was given for Seoul Special Metropolitan City and its legislature to provide their opinions over the legislative process to enact the Administrative Capital Act.

3. Determination of the Court on the Legal Prerequisites for Constitutional Complaints

A. Probability of Violation of Basic Rights

The Act at issue in this case is a statute that conclusively determines the transfer of the capital and sets forth the procedures of the transfer. Although no constitutional provision expressively provides that the capital of our nation is Seoul, should it be confirmed, by construction of the Constitution, to be part of unwritten customary constitutional law as a fundamental constitutional matter established through a long tradition of life in the national domain, the Act at issue in this case to relocate the capital would be a change to the Constitution in the form of an inferior statute without constitutional revision procedures. Notwithstanding any express constitutional provision, constitutional custom is firmly a part of the constitution of the nation therefore may be revised only by the constitutional revision procedures. Article 130 of the Constitution requires that the constitution be revised upon proposition either by the majority of the entire membership of the National Assembly or by the President, followed by the resolution of the National Assembly by the minimum of two-thirds of the entire membership of the National Assembly in favor of the proposed revision, and thereafter a mandatory referendum where the minimum of the majority of the citizens entitled to vote on general election to constitute the National Assembly actually vote and the majority of those who participate in the referendum vote in favor of the proposed constitutional revision. Therefore, in this case, should it be held on the merit that the nation's capital is Seoul, as a customary constitutional law, then, as the Act at issue in this case forewent the referendum required as a mandatory procedure for the constitutional revision by determining in the form of a simple statute such a matter that should be determined by constitutional revision, the Act may have violated the above right to vote of the citizens.

Then, as the Act at issue in this case may have possibly violated the complainants' basic right to participate in politics for the constitutional revision in the form of the right to vote on referendum, the probability of the violation of the right does exist.

B. Self-Relatedness, Directness and Presentness of Alleged Violation of Basic Right

The probability that the Act at issue in this case may have violated the fundamental right of the complainants is indicated above. Next, therefore, the directness and the presentness of such violation of right will be discussed below. The allegedly violated basic right here is the right to vote on referendum for the constitutional revision, which is one of the rights to participate in politics held by the citizens. Such right is a basic right held by each of the individual complainants who are the citizens of the Republic of Korea. Thus, there exists the self-relatedness of the violation of the right to the complainants with respect to the Act at issue in this case. Also, the Act at issue in this case assumes the transfer of the capital as a given premise and then provides for specific implementation thereof, hence requiring no further procedure or decision with respect to the 'relocation of the capital' itself. Therefore, as the Act at issue in this case directly excludes the basic right to vote on referendum entitled to the citizens for the constitutional revision, there exists the directness. In addition, as the transfer of the capital was statutorily finalized by the promulgation and enforcement of the Act at issue in this case thereby previously excluding the above right to vote on referendum of the complainants, the violation of the above right has become presently real and continues presently. Therefore, there also exists presentness. Then, there exists self-relatedness of the violation of the right to the complainants with respect to the Act at issue in this case which provides for the procedure of the relocation of the capital based upon the premise that the relocation of the capital has been determined, and there also exist the directness and the presentness of the violation of right held by the complainants.

C. Timeliness of Filing of the Constitutional Complaints

Article 69, Section 1, of the Constitutional Court Act provides that the constitutional complaint pursuant to Article 68, Section 1, of the same Act shall be filed within ninety(90) days of the knowledge of the ground therefor or within one(1) year of the occurrence of such ground, whichever is earlier. Thus, a constitutional complaint with respect to a law should be filed within ninety(90) days of the knowledge of the enforcement of that law or within one(1) year of its enforcement, whichever is earlier, in the case of violation of basic right simultaneous of the enforcement of the law; and, within ninety(90) days of the knowledge of the occurrence of the ground for constitutional complaint or within one(1) year of the occurrence of such ground, whichever is earlier, in the case of violation of fundamental right by the occurrence of a ground in accordance with law subsequent to the enforcement of the law(Gazette No.92 554, 556, 2004Hun-Ma93, April 29, 2004).

In the present case, the constitutional complaints were filed on July 12, 2004 and July 15, 2004, within ninety(90) days from the enforcement of the Act at issue in this case on April 17, 2004. Therefore, the constitutional complaints in this case are timely in all regards.

D. Applicability of Doctrine of Political Question Inappropriate for Judicial Review

Now, whether or not the constitutional complaints in this case are unjustified on the ground that the determination of the President or the National Assembly upon the construction of the new administrative capital or the relocation of the capital is not subject to judicial review as such matter is of highly political nature is discussed in the following paragraphs.

(1) The existence of the state functions in our Constitution for which judicial review should be refrained due to the request for as much deference as possible to the determination of highly political nature reached by the President or the National Assembly upon such matters demanding such highly political determination, concerning, for example, the exercise of national emergency power or overseas dispatch of the National Armed Forces, may be acknowledged. However, pursuant to the principle of the rule of law that is a basic principle of our Constitution, any and all government power including the President and the National Assembly must be subject to the rule of law, and the limit that all state function is the means to realize the value of basic rights of the citizens must uncompromisingly be observed. Also, the Constitutional Court is a state institution that is dedicated to the protection of the Constitution and the guarantee of the basic rights of the citizens. Therefore, even those state functions exercised by highly political determination are subject as a matter of course to review by the Constitutional Court, when such functions directly relate to the violation of the basic right of the citizens(Refer to 8-1 KCCR 111, 115-116, 93Hun-Ma186, February 29, 1996).

(2) Although the political nature of the construction of a new administrative capital or the relocation of the capital may be acknowledged, such matters may not be deemed in themselves, without further, as inappropriate to be subject to judicial review due to the request for highly political determinations. Furthermore, the subject matter of review in this case is the constitutionality of the Act at issue in this case and not the constitutionality of the act of the President. When the subject matter of constitutional adjudication is the constitutionality of a statute, it may not avoid judicial review on the mere ground that the statute concerns political matters.

(3) Here, should the decision of the President with respect to whether or not to submit the matter of relocation of the capital to a referendum be subject to judicial review as a preliminary issue for the determination of the constitutionality of the Act at issue in this case, it then may be desirable that judicial review is abstained from as such decision is of a highly political nature. Accordingly, it may be desirable that judicial review over the Act that is asserted to be unconstitutional based upon the defect in such decisionmaking is also abstained from. However, should the above decisionmaking of the President be directly relevant to the violation of the basic right of the citizens, such decisionmaking may be the subject matter of judicial review in the constitutional adjudication, and, accordingly, the Act relevant to the above decisionmaking may also be the subject matter of review in the constitutional adjudication.

As our Constitution provides for the direct right to participate in politics in the form of right to vote on referendum(Articles 72 and 130 of the Constitution), along with the indirect right to participate in politics such as the right to elect(Article 24 of the Constitution), the right to vote on referendum is one of the basic rights guaranteed in the Constitution(Refer to 13-1 KCCR 1431, 1439, 2000Hun-Ma735, June 28, 2001). Therefore, should the decisionmaking of the President violate the right to vote on referendum held by the citizens, even if the above decisionmaking is a conduct of highly political nature, it may be subject matter of review in the constitutional adjudication at the Constitutional Court for its direct relevance to the violation of the basic right of the citizens. Therefore, even if the constitutionality of the Act at issue in this case concerns the decision of the President, it may be subject matter of review by way of constitutional complaint.

(4) Then, even if the constitutionality of the decisionmaking of the President must be reviewed as a preliminary matter for reviewing the constitutionality of the Act at issue in this case, to the extent such review is for determining whether the right of the citizens to vote on referendum is violated, the Act at issue in this case may be subject matter of review of the constitutional adjudication by the Constitutional Court, thereby permitting a constitutional complaint with respect to this. Therefore, filing of the constitutional complaint in this case may not be deemed unjustified due to the failure to state appropriate subject matter of review.

E. Subconclusion

As examined in the preceding paragraphs, there exist all legal prerequisites for the constitutional complaint in this case with respect to the above issues, and there are no other defects otherwise found concerning legal prerequisites. Therefore, filing of the constitutional complaint in this case is justified.

4. Determination of the Court on the Merits

A. Concept of the Capital under the Constitution

(1) In general, the capital of a nation means the geographic location where the national institutions and organizations implementing the core of state powers are concentrated thereby assuming pivotal functions of politics and administration and symbolizing the nation towards other nations. A capital should have the following characteristics in order to satisfy the normative requirements of the constitutional state: First, the capital of a constitutional state under representative democracy should be the location where the legislative function through the legislature that is an organ representing the citizens takes place. The "functional location" of the legislative organ is one of the important elements of the characteristics of a national capital. Next, the capital should be the location where the representative function and the unifying function of the nation take place. Under the constitution of a nation such as ours that adopts the presidential system, the President represents the nation and functions to maintain national unity, and such internal and external activities of the President endow one of the necessary elements of the "characteristics of the capital" to the location where such activities take place. Such activities of the head of state possess symbolic value in the sentiments of the citizens thereby serving as the psychological momentum for national unity. Therefore, such activities have a fundamental significance in determining the characteristics of the capital. In addition, the capital is the location where the activities of the national institutions and organs implementing governmental functions take place. The government leads the nation in politics and administration by responsibly implementing all domestic and international policies including, especially, economic policies. Such governmental functions provide a basis as the capital to the geographic location where the governmental functions are exercised and realized. However, on the other hand, as government takes charge of and implements the administration that should be creative and proactive, its organs are specialized and expanded, therefore such organs do not have to be concentrated and located in one city. Multi-locational allocation of the governmental organization may be contemplated as a policy matter especially in consideration of the situation readily realizing organic cooperation of operation overcoming locational distance by utilizing such up-to-date information technologies as video conference and electronic approval due to the remarkable development in information and communication technologies in recent years. Especially under the presidential system of government, as the President is the chief of the executive branch as well as the head of the state, the location of the government may be deemed to be represented by the location of the President. Therefore, as long as the location of the President is viewed as a characteristic element of the capital, the location of various ministries of the government should not be necessarily viewed as a separately decisive element in determining the capital. On the other hand, neither the location where judicial power including constitutional adjudication is exercised, nor the economic capacity of a city, is an indispensable element for the determination of the capital. In sum, the capital means, at a minimum, the geographic location of the national institutions and organs that perform pivotal political and administrative roles.

(2) The highest constitutional institutions and organs under our Constitution are the National Assembly(Chapter III of the Constitution), the President(Chapter IV, Section 1), the Prime Minister(Section 2, Sub-Section1), the Executive Ministries(Section 2, Sub-Section 3), the Supreme Court(Chapter V), the Constitutional Court(Chapter VI), and the National Election Commission(Chapter VII). Among such constitutional institutions and organs, the location of the National Assembly that decides the political intent of the citizens as the representative organ of the citizens and the location of the President who superintends the administration and represents the nation are particularly decisive elements in determining the capital. The President symbolizes the nation as the head of state, while holding the highest reins of government in the national operation as the chief executive officer of the government. The National Assembly is a representative institution consisting of the representatives elected by the citizens as holders of the sovereignty, which assumes the pivotal role of representing the sovereign will and determining the important national intent under the present-day governmental structure of indirect democracy. Therefore, these two national institutions, inter alia, stand at the center of state power, and express towards the outside the existence and the idiosyncrasy of the nation.

B. Whether the Act at Issue in this Case Involves the Decision to Relocate the Capital

The Act at issue in this case merely provides in an express provision that it "regulates the methods and procedures of the construction of the new administrative capital" under Article 1, and does not expressly include the decision itself to relocate the capital of the Republic of Korea from the current capital of Seoul Special Metropolitan City to a different location. In addition, under the Act, any plan established by the Establishment of the New Administrative Capital Promotion Committee with respect to the scope of the major national institutions and organs to be relocated should be approved by the President(Article 6, Section 1), and, especially, the consent of the National Assembly is required for the constitutional institutions and organs not belonging to the executive branch of the government(Article 6, Section 4). Thus, not all of the major national institutions and organs are included in the scope of relocation depending upon the approval and non-approval of the President and the consent and refusal of the National Assembly. Therefore, the Act at issue in this case does not directly mandate that all of the major national institutions and organizations including the National Assembly and the President be transferred to the new administrative capital.

However, on the other hand, the Act at issue in this case defines the new administrative capital as the "location to be determined by statute . . . newly constructed as the capital to assume the pivotal political and administrative function of the nation"(Article 2, Section 1) and provides that the prospective location of the new administrative capital is the "location to be identified and notified . . . for the relocation of the major constitutional and central administrative institutions and organs"(Article 2, Section 2), thereby clearly indicating that, consequently, the new administrative capital shall be the capital having the pivotal political and administrative function of the nation where major constitutional and central administrative institutions and organs are located. Therefore, the Act at issue in this case requires that the scope of the relocation be sufficient so that the new administrative capital may assume the pivotal political and administrative function of the nation, although it does not individually identify the scope of the major national institutions and organs to be relocated. Then, the Act at issue in this case contemplates the transfer of the national capital within the meaning of the concept of the capital under the constitution as the location of the national institutions and organs performing the pivotal political and administrative function as indicated above. Thus, the relocation of the new administrative capital pursuant to the Act at issue in this case means the relocation of the capital of our nation.

Further, the Act at issue in this case provides that the prospective location for the relocation of the capital should be determined within the Daejeon Metropolitan City, North Chungcheong Province and South Chungcheong Province area(hereinafter referred to as the 'Chungcheong area')(Article 8); that the Establishment of the New Administrative Capital Promotion Committee shall be established under the President for effective implementation of the construction of the new administrative capital(Article 27); and that the Promotion Committee should manage all matters necessary for a smooth construction of the new administrative capital(Article 28), such as the planning to relocate major national institutions and organs to the new administrative capital(Article 6, Section 1), the establishment of a basic plan for the construction of the new administrative capital(Article 7, Section 1), the determination of the prospective location for the construction of the new administrative capital(Article 12), and the establishment of development plans concerning the construction operations(Article 19). Further yet, the Act at issue in this case provides for such matters as the determination of the entity in charge of the construction of the new administrative capital(Article 18), the establishment of a plan concerning the construction of the new administrative capital(Article 19), the establishment and the approval of the implementation plans therefor(Article 20), the establishment of the infrastructure therefor(Article 22), land expropriation(Article 23), and the inspection upon completion of the construction(Article 26).

As such, the Act at issue in this case provides for the operation to actually construct the new administrative capital beyond a mere establishment of plans for the relocation to the new administrative capital, and, particularly, endows the authority to establish and implement various plans for carrying out the relocation of the capital as indicated above to the Promotion Committee which is to be established pursuant to the Act at issue in this case, thereby enabling the administrative capital relocation operation to be carried out in actuality by the enforcement of the Act at issue in this case without any separate decision of the national will upon the relocation of the administrative capital.

Then, in sum, the Act at issue in this case contains within itself the decision to relocate major national institutions and organs performing pivotal political and administrative functions of the nation to the new administrative capital which is to be constructed in the Chungcheong area, thereby consequently involving within it the decision to relocate the capital of the Republic of Korea to the Chungcheong area.

C. Whether that the Capital is Seoul is the Customary Constitutional Law of our Nation

(1) Meaning of and Elements for Customary Constitutional Law under Written Constitution System

(A) Our nation has a written constitution, and, as such, fundamentally, the source of law for our constitutional law is the text of the Constitution of the Republic of Korea. However, notwithstanding the existence of a written constitution, it is impossible to completely provide without omission for all constitutional law matters in the written constitution, and, in addition, the Constitution pursues succinctness and implication as the basic law of the nation. Therefore, there is room for recognizing certain matters though not written out in the formal code of the Constitution as unwritten constitution or customary constitutional law. Especially, there may be certain circumstances where no express provision is necessarily included in the text for those matters that are self-evident or presupposed or that are general constitutional principles at the time of the establishment of the written constitution. However, not all practices or conventions formed concerning constitutional law matters may be recognized as customary constitutional law. Instead, strict elements should be satisfied in order for the recognition thereof as the constitutional norm with legal enforceability, and, only those customs satisfying such elements have the same legal force as the customary constitutional law as that of the written constitution.

(B) Article 1, Section 2, of the Constitution provides that "the sovereignty of the Republic of Korea shall reside in the people, and all state authority shall emanate from the people." As such, as the citizens of the Republic of Korea are the holders of the sovereignty of the Republic of Korea and of the highest authority to establish the constitution, the citizens not only participate in the establishment and the revision of the written constitution, but also may directly form as necessary constitutional law matters that are not included in the text of the written constitution, in the form of customs. Then, the customary constitutional law should be deemed as the expression of intent of the constitutional determination of the citizens as the holders of sovereignty, like the written constitution, and, should also be deemed to have the same force as that of the written constitution. As such, the formation of the constitutional norm through customs is one aspect of the exercise of the people's sovereignty. The principle of people's sovereignty or democracy requires the participation of the citizens in the establishment of the positive law, written or customary, in the entirety, and the customary constitutional law established by the people binds the legislator and has the force as constitutional law.

(C) In order for the establishment of a customary constitutional law, first, the matter concerning the custom which has been formed should be a constitutionally significant and fundamental matter to the extent that it may not be regulated merely by statute, yet should instead necessarily be regulated by the constitution to have superiority over statute in its legal force. Although in general a substantive constitutional law matter refers broadly to a matter pertaining, inclusively, to the organization and structure of the nation, the constitution and the authority of the national organizations and institutions, or the status of the individuals in relation to state power, the constitutional custom pertains to such matters especially fundamental and pivotal to the state among general constitutional law matters, which are not adequately regulated by the statutes. Specifically which among the general constitutional law matters falls into the category of these fundamental and pivotal constitutional law matters may not be tailored by employing a general and abstract standard, but should be determined in each of the individual circumstances by specific judgment through assessment of the closeness to the constitutional nucleus, the constitutional significance, and the constitutional principles.

(D) Next, in order for the establishment of the customary constitutional law, the general elements required for the establishment of customary law should be satisfied. Such elements include, first, the existence of a certain practice or convention with respect to the fundamental constitutional law matter, second, the repetition and the continuation of the practice for a sufficient period of time for the citizens to recognize its existence and to perceive it as a practice that will not disappear(repetitiveness and continuance), third, the maintenance of the practice without intervening opposing practices(maintainability), and, fourth, the unequivocal and clear content of the practice not permitting diverse interpretations (unequivocalness). In addition, fifth, there should be an approval or conviction, or a wide consensus of the citizens with respect to the practice as a customary constitutional law, thus the people must believe in its legal enforceability(national consensus). Likewise, in order for the recognition of the establishment of a customary constitutional law, all of these elements should be satisfied.

(2) Issue of Location of Capital as Fundamental Constitutional Law Matter

Determining the location of the constitutional institutions and organs, and especially of the President who represents the nation and of the national legislature or the National Assembly that function as a pivotal role in democratic principle of government, is one of the substantive constitutional law matters expressing the identity of the nation. Here, the identity of the nation means the characteristic nature of the nation, as the source of emotional unification of the nation, which is formed by the composite expression of history, experience, culture, politics, economy, power structure and spiritual symbols, and so forth, of its people. Other than the determination of the location of the capital, the fundamental constitutional law matters include the determination of the official name of the nation, the adoption of the Korean language as the official national language and the Korean alphabet as the official national alphabet, the delimitation of the national borders, and the proclamation of the holder of the sovereignty. The establishment or the transfer of the capital is the locational allocation of the basis of the national organization and structure by determining the location of the highest constitutional institutions and organs such as the National Assembly and the President, and, as such, is the fundamental decision of the people with respect to the nation, while at the same time constitutes a pivotal constitutional law matter that forms the basic element of the nation.

Likewise, the issue of the location of the capital is a constitutional law matter in its substance, and, further, is a significant and fundamental constitutional law matter that pertains to the identity of the nation and its basic organization and structure. As such, it is a matter to be determined by the people themselves, and may not be subject to the decision of the President or the government, or the inferior institutions thereof.

(3) Whether that the Capital is Seoul is a Customary Constitutional Law

(A) There is no express provision within the code of our Constitution that states 'the capital is Seoul.' However, Seoul has the dictionary meaning of the 'capital.' Since the establishment of the Chosun Dynasty by Lee Seong Gye in 1392 and the construction of the capital in Hanyang, for over six hundred years, the present Seoul area has conventionally been termed as such, by transforming a general noun to a proper noun. Therefore, that the present Seoul area is the capital is self-evident by its term itself, and the people have already perceived it as such unconsciously or consciously as a historical and traditional fact since before the establishment of the Republic of Korea. By the time of the establishment of the Republic of Korea, there rose no question concerning this, either, as a given premise or self-evident fact with respect to the basic organization of the nation. Therefore, from the outset of the establishment of our Constitution including the inaugural Constitution, an inclusion of the constitutional provision stating that 'the capital(Seoul) shall be located in Seoul,' which would tautologically confirm a given fact, was meaningless and unnecessary. An express constitutional provision with respect to the location of the capital has never been established in our Constitution over subsequent constitutional revisions in several times. However, this never indicates that there exists no constitutional custom itself with respect to the location of the capital, in light of the historical, traditional and cultural circumstance of our nation. That Seoul is the capital is perceived by all citizens as a legal norm with legal force for the organization of our nation, as a self-evident or presupposed fact firmly formed through the long tradition and custom in the nation.

(B) On the other hand, in order to determine whether it should be approved as customary constitutional law that Seoul is the capital of our nation, the historical details that Seoul was established as the capital of our nation and has continuously functioned as the capital should be, inter alia, verified by corroboration.

1) Establishment of the Chosun Dynasty and the determination of Seoul as the location of the capital

a) From early on, Seoul functioned as Namgyung, or the southern capital, during the Koyro Dynasty, thus serving as the center of local administration, along with Pyongyang, the western capital, and Gyeongju, the eastern capital, together forming the three local capital system of the Koryo Dynasty(21st year of King Munjong, or 1067 A.D.). Namgyung or the southern capital directly had jurisdiction over part of the present Seoul-Gyeonggi area, and, as the center of administration for the adjacent regions, there was a city of considerable size including the palace constructed therein, where the kings of the Koryo Dynasty used as quarters as they made their rounds past Seoul as well.

b) Immediately following the establishment of the Chosun Dynasty, a suggestion was made for the relocation of the capital. Lee Seong Gye, the inaugural king of the Chosun Dynasty who ascended the throne on July 17 of 4th year of King Gongyang or 1392 A.D.(hereinafter referred to as the "Taejo"), ordered the Dopyeonguisasa(Council of Ministers) to relocate the national capital to Hanyang on August 13 of the same year. However, this initial plan to transfer the capital was suspended, as Bae Guk Ryeom & Cho Jun and certain others petitioned on September 3 of the same year that "the transfer of the capital should be preceded by the construction of the palaces and the castles and the placement of the administrative offices, for in Hanyang the palaces are yet to be constructed and the castles are yet to be completed, which will result in confiscation of the commoners' abodes by the wealthy and powerful while those expelled subjects will be left with nowhere to return, as the weather turns cold," and Taejo accepted this petition.

c) Subsequently, the discussion for the relocation of the capital was transformed to the discussion upon where to relocate the capital, as such new candidates as Mount Gyeryong and Muak emerged therefor. In the case of Mount Gyeryong, Taejo himself made a survey of the candidate area at the foot of the Mount Gyeryong on February 8 of 1393, A.D.(2nd year of Taejo), and chose this area for the location of the new capital upon examining the features of the mountains and the watercourses and the conditions of the marine transportation and the roads, which was followed by the initiation of the construction work and the adjustment of the administrative districts. However, around December 11 of the same year, the construction of the new capital was again suspended due to the opposition raised by Ha Ryun, the then governor of Gyeonggi-do. At that time, Ha Ryun asserted that the construction of the capital should be terminated on the ground, among others, that, while the capital should be geographically located at the center of the nation, Mount Gyeryong is inclined to the south. Taejo accepted this assertion upon review by many government officials.

The place that subsequently emerged as the new candidate was Muak(currently the Yeonhui-dong and Shinchon-dong area in Seoul). Taejo made a survey of Muak himself on August 11 of 1394, A.D.(3rd year of Taejo), however, ordered to search for a new location for the capital as many government officials opposed to the move to Muak and some of them were even in the opinion that the capital should remain in Songdo. At this point, Namkyung, that is, Hanyang, once again attracted attention. In the course of consequent survey over Hanyang by Taejo on the 13th day of the same month, Jacho(also named Muhak), a buddhist priest in the capacity of the royal counselor, and many of the Ministerss altogether were in the opinion that Hanyang was appropriate to be the nation's capital, thus Taejo finally determined to choose Hanyang as the capital.

d) Officially, the relocation of the capital to Hanyang was determined by way of Dopyeonguisasa(Council of Ministers)'s petition on the 24th of the same month to choose Hanyang as the capital and then Taejo's acceptance of such appeal from the Prime Ministerss. Subsequently, Seoul, or the capital, was moved to Hanyang on October 25 of the same year following the preparation for several months. On June 6 of 1395, A.D.(4th year of Taejo), Hanyang-bu was reorganized as Hanseong-bu, and, pursuant to the naming plate established by Hanseong-bu under Taejo's order, the then Hanseong area was organized as five(5) "bu"s and fifty-two(52) "bang"s altogether.

e) Subsequent to the relocation of the capital undertaken as such, with the exception of those several years from March 7 of 1399, A.D.(1st year of King Jeongjong) when the King and the lieges took a temporary refuge to Gaeseong to escape from calamity and disturbance to October 11 of 1405, A.D.(5th year of Taejong) when they returned to Hanseong, Hanseong, i.e., Seoul, uninterruptedly retained the status of the nation's capital throughout the Chosun Dynasty.

f) This status of Hanseong as the capital was directly reflected in the Gyeonggookdaejeon, which was the basic code of the laws of Chosun that was completed during the King Seongjong period. The provisions concerning Hanseong-bu were included under the Hanseong-bujo of the chapter of Central Administrative Offices under the title of Yijeon: the central administrative offices were distinguished from the local administrative offices of Weguanjik, and its jurisdiction was expressly indicated as matters pertaining to the capital area including, for example, the census registry and the markets of Seoul, thereby clearly providing for the status of Hanseong as the nation's capital. Such content of the Gyeonggookdaejeon remained unchanged throughout the existence of the Chosun Dynasty, without any revision.

2) Seoul's Maintenance of Characteristics as Capital during the Japanese Colonial Regime

In August of 1910, Japan's forceful colonial rule over our nation began by the Annexation of Korea by Japan. Yet, Gyeongseong-bu or Seoul remained to function as the center of the administration of our nation, and Seoul was also the place where, during the state of deprivation of national sovereignty, the national representatives declared the independence of our nation on March 1, 1919. On the other hand, the Provisional Constitution of the Republic of Korea that was adopted by the Provisional Government on Exile of the Republic of Korea established in Shanghai, China, on April 13, 1919, following the March 1st Independence Movement subsequent to the above declaration of independence, did not mention anything particular with respect to Seoul, and merely provided under Chapter 4 that the provisional legislature of should consist of six members from each of the Provinces of Gyeonggi, Chuncheong, Gyeongsang, Jeolla, Hamgyeong and Pyeongan, and three members from each of the Provinces of Gangwon and Hwanghae and from the American continent(Article 20). The constitutions of the Provisional Government as subsequently revised remained unchanged in this regard. However, Seoul retained the symbolic nature in external relations as the capital of our nation despite the disintegration of the state organization and structure due to the forceful occupation of the national territory by Japan, in light of the fact that the unified provisional government formed on September 15, 1919 with the attributes of a constitution, a legislature, a declaration under oath, a platform and a program and comprised of multiple provisional governments established in three regions of Shanghai, Russian territory, and Hanseong(Seoul) among those provisional governments formed in various regions other than the Provisional Government on Exile of the Republic of Korea in Shanghai, located its headquarters for the communication system, the secret administrative network that the above unified provisional government operated. Also, the provisional government organized the independence activities against Japan on the given premise that Seoul was the capital, and the awareness and perception of the citizens remained unchanged. Therefore, the characteristics of Seoul as the nation's capital were duly maintained in actuality during this period of time as well.

3) Maintenance of Seoul's Characteristics as Nation's Capital following Independence and Establishment of the Republic of Korea, to Present

During this period from Independence to the establishment of the Republic of Korea, the constitution of our nation was ordained and established. However, no express provision concerning the capital was included in the text of the constitutional code. Yet, many of the individual statutes based on the premise of Seoul as the nation's capital have historically existed.

a) The very first of such statutes was U.S. Military Order No. 106, "Order for the Establishment of the Seoul Special Metropolitan City," issued on September 18, 1946 during the U.S. military government regime following Independence, which provided in Article 2 that the city of Seoul was to be established as the Special Metropolitan City as the "capital of Chosun," with the same functions and the authorities as the Province or Do. The first discussion upon the status of the city of Seoul by the representatives of our own citizens was at the Provisional Legislature of South Chosun, which was established on August 24, 1946 by the U.S. Military Order No. 108, "Establishment of the Provisional Legislature of South Chosun," within the headquarter of the U.S. Military Government in Korea(USAMGIK). The draft bill for the "South Chosun Transition Government Organization Act" proposed to the above Provisional Legislature on February 27, 1947 expressly provided in the second paragraph of Article 52 that "the City of Seoul shall be the Special Metropolitan City and shall be directly under the executive branch of the central government," thereby specially treating Seoul, and no other. The bill for the "Local Government Organization Act" discussed on July 30 of the same year maintained the major contents of the above Military Order No. 106, expressly stating that "the City of Seoul shall be the Special Metropolitan City as the capital of Chosun, and shall have the same functions and authorities as the Province or Do."

b) The City of Seoul first obtained its status as the Special Metropolitan City by the legislation of the Local Autonomy Act(July 4, 1949, Statute No. 32). The above statute established in Article 2 the Provinces or Dos on one hand, and "Seoul Special Metropolitan City" on the other hand, as the local governments directly under the central government. Concerning this, Assemblyperson Na YongGyun, who then served as the committee chair for internal affairs and security, explained that "These were all 'Bu's and 'Gun's during the Japanese Occupation. During the Interim Government, Seoul was solely referred to as Seoul Special Metropolitan City and the rest as 'Gun's; . . . relating to this in terms of the population and the status of the capital, in Japan, for example, Tokyo is established as Do. Considering these, Seoul is named as the Special Metropolitan City," thereby confirming that Seoul was established as the Special Metropolitan City in consideration of its status as the capital.

c) Under the current law as well, at the revision of the Local Autonomy Act on April 6, 1988 by Statute No. 4004, a new provision was added as Article 161, which states that "With respect to the status, organization and administration of Seoul Special Metropolitan City, a special treatment pursuant to the statute in consideration of its special characteristics as the capital may be adopted." Pursuant to this provision, the "Act on Special Cases concerning the Administration of the Seoul Special Metropolitan City“ was enacted on May 31, 1991 by Statute No. 4371. Under this Act, Seoul Special Metropolitan City is under the direct control of the central government, and has the special status as the capital (Article 2). In order for the Ministry of Internal Affairs to decide whether to approve Seoul Special Metropolitan City's issuance of the local government bond or to audit its autonomous affairs, a mediation by the Prime Minister should precede(Sections 1 and 2 of Article 4). The mayor of Seoul Special Metropolitan City has a special authority over the appointment of and the conferment of decoration on the public officials of Seoul Special Metropolitan City(Sections 5 and 7 of Article

4). In addition, should the opinion of the head of the central administrative institution or agency and the opinion of the mayor of Seoul Special Metropolitan City differ with respect to the establishment and the execution of the plan for the road, traffic and environment, etc., around the capital region that is relevant to Seoul Special Metropolitan City, a mediation by the Prime Minister is mandatory(Article 5). d) The legislations reviewed above indicate that, although there have continuously existed since Independence those statutory provisions stating that Seoul is the capital, such statutory provisions concede as a normative premise to the fact that Seoul has traditionally been the capital of our nation, and are merely to legally establish under this standard the special status of Seoul as the capital. This aspect of the legislation confirms the traditional legal conviction of our citizens that Seoul is the capital.

(C) As examined above, that the national capital is Seoul should be deemed to have been formed as an unwritten customary constitutional law, for it has had a legal effect as a basic legal norm of the nation for a long period of time since the establishment of the Chosun Dynasty as the Gyeonggookdaejeon expressly adopted it, and has constituted part of the most basic norm that is self-evident and presupposed in the structure of our constitution as a matter over which a firm belief has been formed among the citizens through the long history and custom since before the establishment of the inaugural Constitution of the Republic of Korea, although no express provision of the Constitution states it.

Examining this in further detail in light of the elements for the establishment of the customary constitutional law discussed previously, that Seoul is the capital of our nation has been a given normative fact concerning the nation for over six-hundred(600) years since the Chosun period as the meaning of the word Seoul also indicates, therefore it can be estimated as a continuing convention practice traditionally formed in the nation(continuance); such practice has never been interrupted in the continuum as it has existed in actuality for a long period of time without change(maintainability); the fact that Seoul is the capital has a clear meaning to the extent that none among the citizens of our nation would hold a different opinion over it individually(unequivocalness); and, further, such practice is a basic element of the nation in whose effectiveness and enforceability the citizens believe, by obtaining the approval and the wide consensus of the citizens through firm establishment over a long period of time(national consensus). Therefore, that Seoul is the capital is part of the unwritten constitution established in the form of customary constitutional law, as it is a customary constitutional law that has traditionally existed since prior to our written constitution, and is a norm that is self-evident and presupposed in the constitution notwithstanding the absence of an express constitutional provision indicating this.

To recapitulate, the fact that Seoul is the capital, which satisfies all of the above elements, is not merely a factual proposition but instead a sublimed unwritten constitutional norm with the constitutional effect; it is not an extraction of normative proposition from a factual proposition but instead a dormancy of its normative nature behind the factual proposition as it has been uninterruptedly maintained with no dispute over its normative force.

(4) Constitutional Procedure to Eliminate Customary Constitutional Law of 'Seoul as the Capital'

(A) When a legal norm is acknowledged as a customary constitutional law, the corollary is the possibility of its revision. As the customary constitutional law has the same legal effect as that of the written constitution as part of the constitutional law, the customary constitutional law may be revised solely by the constitutional revision procedure pursuant to Article 130 of the Constitution. Therefore, it requires the resolution therefor of the National Assembly by the minimum of two-thirds of the entire membership of the National Assembly(Article 130, Section 1, of the Constitution), and then the minimum of the majority votes in its favor at a referendum in which the minimum of the majority of those who are entitled to vote at the general election participate(Article 130, Section 3, of the Constitution). Here, the only distinction between customary constitutional law and the written constitutional provision in this regard is that a customary constitutional law is eliminated by adding a constitutional provision contrary to such customary constitutional law to the constitutional text, whereas a written constitutional provision is eliminated by striking out the relevant constitutional provision from the constitutional text.

On the other hand, other than by this formal constitutional revision, customary constitutional law may lose its legal force by the loss of the national consensus that supports it. A customary constitutional law exists as a valid constitutional norm, only with the duration of the acknowledgement thereof of the citizens as holders of sovereignty, and, should the national consensus that is one of the elements for the existence of customary constitutional law cease to exist, its legal force as customary constitutional law also ceases to exist. The elements of customary constitutional law are the elements not only for its establishment, but also for the maintenance of its legal force.

(B) The matters acknowledged as customary constitutional law under the system of written constitution subject to strict conditions for revision such as ours, may not be revised by statute that is in the form of an inferior law. In the system of unwritten constitution with lenient revision procedures such as that of the United Kingdom, there exists no such form of norms as a constitutional text that is superior to a statute, thus, the constitutional law matters may in general be revised only by way of statutory revision. However, in the case of our constitutional law, Articles 128 through 130 under Chapter 10 of the Constitution set forth a strict procedure for the constitutional revision that is different from the revision procedure for general statutes, and such constitutional revision procedure designates its object merely as the 'constitution.' Therefore, as long as customary constitutional law constitutes part of the constitution, it is within the meaning of the constitution that is the object of the constitutional revision procedure referred to here. As such, under our constitutional system clearly distinguishing the revision procedures for the constitution and the statutes and then setting forth a stricter revision procedure for the constitution, permitting the revision of customary constitutional law by way of the statute would be the recognition of the customary constitutional law as a mere constitutional 'statute' and the denial thereof as part of the 'constitution' any longer, thus it would eventually be the denial of the existence of customary constitutional law. Such a consequence may not be accommodated under our constitutional system, for it is logically incompatible with the major premise that recognizes customary constitutional law under the written constitution system.

(C) Then, in order to eliminate the customary constitutional law that the capital of our nation is Seoul, a constitutional revision pursuant to the procedure set forth by the Constitution is mandatory. In this case, a distinction from the case of a written constitutional provision is that, while a revision by striking out a written provision would be required had there existed a written constitutional provision establishing the capital, for the customary constitutional law, a mere insertion of a new written constitutional provision establishing a capital inconsistent with the substance of customary constitutional law would suffice for its elimination. For example, the customary constitutional law that Seoul is the capital can be eliminated by inserting a provision establishing a certain district in the Chungcheong area as our new capital. However, even for the custom established as the constitutional norm, should an encroachment thereupon occur along with the passage of time and the change in the constitutional situations and should the generalization of such encroachment result in the loss of the national consensus with respect to its legal force, such customary constitutional law will naturally become extinct. In order to recognize such extinction, there may be room for consideration of such a method such as national referendum, in which all can trust, in order to confirm the national consensus. However, there is no confirmation of such extinction in this case. Therefore, as stated previously, that the capital of our nation is Seoul is a matter established as customary constitutional law under our constitutional law concerning which there has been no change of circumstances, therefore, the constitutional revision process is mandatory for the elimination thereof.

D. Constitutional Permissibility of the Act at Issue in this Case that Relocates the Capital

(1) As examined above, that the capital of the Republic of Korea is Seoul is part of the so-called unwritten constitution, as customary constitutional law that has been established over a long period of time notwithstanding the nonexistence of an express provision in our Constitution. The Act at issue in this case is a statute that is to ascertain the relocation of the capital of our nation to a certain location in the Chungcheong area and to regulate the procedure of such relocation, and, as such, is of the substance of changing the above unwritten constitutional law that the 'capital is Seoul.'

(2) Here, however, there is no particular circumstance whatsoever to deem that a national consensus has newly been formed to the effect that, with respect to the establishment of the capital of our nation, Seoul has become inappropriate as the capital, nor is there presently any basis to deem that the legal conviction of the citizens with respect to the fact that Seoul is the capital has changed or ceased to exist. In addition, there has been no constitutional revision pursuant to the procedure set forth by the current Constitution undertaken to insert an express provision for the relocation of the capital from Seoul in the text of the Constitution.

(3) Then, the Act at issue in this case is in violation of the Constitution, as it is not only inconsistent with the unwritten customary constitutional law that the capital of our nation is Seoul, but also as it is to change an important constitutional law matter that may only be changed by constitutional revision, in the form of a simple statute and foregoing such constitutional procedure.

E. Violation of the Right to Vote on National Referendum

(1) If a particular statute, in lieu of the constitution, regulates a basic constitutional law matter that shall be regulated in the constitutional text, such a statute is unconstitutional as violative of the constitutional system of rigid conditions for revision, regardless of whether its substance is contradictory to the superior constitutional norms. In general, the unconstitutionality of a statute becomes an issue when its substance is violative of the constitutional provisions or the constitutional principles. However, beyond such extent, when a particular statute at issue regulates in the form of a simple statute a matter that should be regulated and revised pursuant to the constitution, this is a direct infringement upon the authority the citizens possess with respect to the establishment and the revision of the constitution as holders of sovereignty.

(2) Here, as examined above, the determination of the intent concerning the establishment and relocation of the capital is a basic constitutional law matter with respect to the identity of the nation, and, as such, is a matter the citizens should determine themselves pursuant to the constitution. In addition, that Seoul is the capital of our nation is an unwritten customary constitutional law, therefore, as long as it does not become invalid by the adoption of a new constitutional provision establishing a new capital, it maintains legal force as constitutional law. Therefore, the enactment of the Act at issue in this case that relocates the capital to a particular location in the Chungcheong area without constitutional revision procedure is a purported revision of the constitutional law matter in the form of a general statute inferior to the constitution.

The constitution may be revised only when the revision is proposed either by the majority of the entire membership of the National Assembly or by the President(Article 128, Section 1, of the Constitution), subsequently resolved therefor by the minimum of two-thirds of the entire membership of the National Assembly in its favor(Article 130, Section 1, of the Constitution), and then approved within thirty days of the National Assembly resolution by the minimum of the majority votes at the national referendum in its favor in which those citizens who are entitled to vote at the general election participate(Article 130, Section 3, of the Constitution). Therefore, a national referendum is mandatory for the constitutional revision, and the citizens thus have the right to express their opinions with respect to the constitutional revision through vote in its favor or opposition.

Here, the Act at issue in this case is to implement the relocation of the capital, which is a constitutional law matter subject to constitutional revision for its revision, in the form of a simple statute while foregoing the constitutional revision procedure indicated above. As such, the Act eventually excludes the exercise of the right to vote on the national referendum, which is a basic right to participate in politics, entitled to the citizens with respect to the constitutional revision under Article 130 of the Constitution, thereby infringing upon this same right.

F. Subconclusion

Then, without even further reviewing other issues raised by the complainants, the Act at issue in this case that is to ascertain the relocation of the capital and to determine the procedure for such relocation is in violation of the Constitution, as purporting to change the unwritten constitutional custom that the capital of our nation is Seoul by way of a statute without following the constitutional revision procedure, thereby infringing in its entirety upon the right to vote on the national referendum for constitutional revision entitled to the citizens including the complainants.

5. Conclusion

As examined above, the Act at issue in this case is in violation of the Constitution as it infringes upon the right to vote on the national referendum entitled to the complainants with respect to the national decision concerning the relocation of the capital. We hold the Act at issue in this case unconstitutional by the unanimous opinion of the participating Justices, with the exception of the separate concurring opinion of Justice Kim Young-il in Paragraph 6. below and the dissenting opinion of Justice Jeon Hyo-sook in Paragraph 7. below.

6. Separate Concurring Opinion of Justice Kim Young-il

I agree with the conclusion of the majority opinion. However, I believe that the Act at issue in this case is unconstitutional because it infringes upon the right to vote on the national referendum guaranteed for the complainants by Article 72 of the Constitution, than because, as the majority asserts, it infringes upon the right to vote on the national referendum under Article 130 of the Constitution. Thus, I respectfully disagree with the reasoning adopted by the majority opinion. The grounds for my separate concurring opinion are as follows. A. Content of the Act at Issue in this Case

I generally agree with the majority opinion with respect to the following points: that the 'new administrative capital' provided for by the Act at issue in this case is not different from the 'capital of the Republic of Korea'; that, therefore, the relocation to the new administrative capital means the relocation of the capital of the Republic of Korea; and that the Act at issue in this case is not a statute merely to execute the capital relocation policy previously determined by other methods of national decisionmaking or to regulate no more than the preparation stages for the relocation of the capital in expectation of the national decisionmaking in the future for the relocation of the capital, instead, the Act itself contains and implicates the decisionmaking for the relocation of the capital.

B. Whether Decisionmaking Concerning Relocation of Capital should be Subject to National Referendum

Article 72 of the Constitution provides that "the President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary," thereby subjecting the 'important policy relating to national security such as diplomacy, national defense, unification and other matters' to the national referendum. Therefore, whether the decisionmaking concerning the relocation of the capital is an 'important policy relating to national security such as diplomacy, national defense, unification and other matters' is now examined.

(1) Whether Relocation of Capital is a Policy relating to National Security

(A) 'National security' within the meaning of Article 72 of the Constitution is a concept relevant to the existence of the nation, and, as such, means the existence and the abolition of the nation. This not only has to do with the existence or the abolition itself, but also includes such matters related to the existence and the abolition, thus including matters critically determining the existence of the nation itself and also the matters affecting the meaning of the existence of the nation.

'National security' within the meaning of Article 72 of the Constitution does not necessarily mean a state of national emergency or a national crisis equivalent thereto. The temporal imminency such as in national emergency or national crisis is a constituting element for such concepts in the legal text of the constitutional provisions as 'internal turmoil, external menace, natural calamity or a grave financial or economic crisis' in Article 76, Section 1, of the Constitution, 'major hostilities' or 'when it is required to take urgent measures' in Article 76, Section 2, of the Constitution, 'in time of war, armed conflict or similar national emergency' in Article 77, Section 1, of the Constitution; however, it is not intrinsic in the concept of 'national security' itself. as Article 72 of the Constitution does not impose any conditions requiring temporal imminency.

'Diplomacy,' 'national defense,' and 'unification' enumerated in Article 72 of the Constitution are examples of policies relating to national security. Therefore, policies relating to diplomacy, national defense or unification are policies relating to national security per se. Further, even if not relating to diplomacy, national defense or unification, should it be a policy relating to national security, it may be subjected to the national referendum. (B) Relocation of the Capital is a Matter relating to National Security.

The capital of a nation is the city symbolizing that nation, and, at the same time, functions as the afferent center of the nation. Therefore, the location of the capital determinatively affects the meaning of the existence of the nation, and, as such, is one of the core elements in determining the identity of the nation.

Furthermore, even assuming the case where the capital does not function as the only centripetal city in all domains of politics, economy, society and culture, the location of the capital widely and significantly influences the life of the people in all of the above domains. Therefore, the location of the capital in this situation also affects the meaning of the nation. Therefore, in all cases, determining the location of the capital is a matter relating to national security.

Then, constructing a new administrative capital that will have the pivotal function in the nation's politics and administration, and relocating major state institutions and organs to the new administrative capital pursuant to the Act at issue in this case is undeniably a matter relating to national security. This would not be different even if Seoul Special Metropolitan City were to maintain the unchanged function as the centripetal city in all the rest of the areas of economic, societal and cultural domains with the exception of the political and administrative domains.

(C) Relocation of the Capital is Also a Matter relating to Unification specifically referred to in Article 72 of the Constitution.

In our nation, as a divided country, the location of the capital has an important meaning not only in the present time of unachieved unification, but also in the future during the unification process and post-unification.

Should South Korea and North Korea discuss matters for unification, those cities that will be functioning at that time or will have functioned until then as the central cities in the respective areas(viewed under current circumstances, for example, Seoul and Pyongyang) will be considered as candidates for the location of the capital of the unified Republic of Korea. Therefore, the location of the capital has a greatly significant meaning in the process of unification.

Also, Article 3 of our Constitution provides that the territory of the Republic of Korea consists of the Korean Peninsula and its adjacent islands. Therefore, the capital of the Republic of Korea is a symbolic city not only for the territory that is south of the Military Demarcation Line under the actual control of the Republic of Korea, but also for the entire Korean Peninsula encompassing the territory that is north of the Military Demarcation Line. Thus, when the unification recovering actual control over the part north of the Military Demarcation Line is achieved, as long as it is not decided otherwise, the capital of the Republic of Korea will have the status as the capital of the unified Republic of Korea. Therefore, the location of the capital will have a greatly significant meaning subsequent to unification as well.

As such, the location of the capital does have a greatly significant meaning prior to and subsequent to the unification and also during the unification process. Therefore, the relocation of the capital is undeniably a matter relating to unification.

(D) Furthermore, Relocation of the Capital is also a Matter relating to National Defense specifically referred to in Article 72 of the Constitution. As the capital is where the core of state power and authority exists, its location is undeniably one of the most important elements of consideration for the national defense strategy. In addition, in our nation where politics has had an abstruse impact upon the overall economy, society and culture, the degree of impact of the location of the capital on the national defense strategy is extraordinarily high. Therefore, the relocation of the capital inevitably results in and should result in a fundamental change in the defense strategy for the Republic of Korea in its entirety.

Therefore, the relocation of the capital is inevitably a matter relating to national defense.

(E) In sum, decisionmaking concerning the relocation of the capital is a policy relating to unification and national defense, and, at the same time, a policy also otherwise relating to national security.

(2) Whether Relocation of Capital is an Important Policy

A national referendum results in the exclusion of representative democracy with respect to the matter subjected thereto. Therefore, in determining whether a matter is an 'important policy' within the meaning of Article 72 of the Constitution, the appropriate standard for judgment is whether a specific policy is worth confirming the actual intent of the citizens separately from the intent of the citizens presumed from that of the representative organ.

Assessing the matter of relocation of the capital from this standard, the matter of relocation of the capital is sufficiently worth confirming the actual intent of the citizens separately from the intent of the citizens presumed from that of the representative organ, in light of the facts that it is a historic issue relevant to the future of the nation and the destiny of the entire citizenry, that there is a concern for crisis over unity of the citizens due to the current division of nation's opinions and sentiments on the subject, and that it draws attention and interest of the entire citizenry as the entire citizenry has interests therein.

Therefore, decisionmaking concerning the relocation of the capital is an 'important policy' within the meaning of Article 72 of the Constitution.

(3) Subconclusion

The decisionmaking concerning the relocation of the capital is an 'important policy relating to national security such as diplomacy, national defense, and unification,' therefore is subjected to the national referendum.

C. Whether President's Submission of a Matter to National Referendum is a Discretionary Act

With respect to the nature of the act of the President submitting a matter to the national referendum, the President's submission of a matter to the national referendum is an act of absolute discretion, considering that: first, Article 72 of the Constitution that is the legal basis for act of submission to the national referendum provides, unlike Article 130 of the Constitution, that the President may submit a matter to the national referendum as the President deems it necessary, thus, seemingly vesting a wide discretion under the structure and the language of the provision's text; second, submission of a matter to the national referendum is undertaken by the President when a national consensus is requested concerning an important policy relating to national security, therefore, as such, is an act in the area where political considerations are requested; and, third, submission of a matter to the national referendum, by its own nature, should be decided by the President following a comprehensive consideration of the totality of the circumstances to assess what fits the national interest and serves to guarantee the fundamental rights of the citizens and not simply through the interpretation of Article 72 of the Constitution, therefore should be determined by assessing what best serves the purpose beyond a judgment over what is the law.

D. Whether Non-Submission of Matter of Relocation of Capital is beyond Limit of Discretion

(1) Limit of Discretion upon Submission to National Referendum

The principle of the government by the rule of law requires that none of the exercise of public power or authority be free from law, but merely permits a difference in the degree to which a particular exercise of public power or authority is bound by law. Therefore, even if the President's submission of a matter to the national referendum is an act of absolute discretion, this may not be free from law.

Thus, even when a particular exercise of public power or authority is an act of absolute discretion, the discretion allowed for that act should be exercised within the limit of discretion permitted by law(external limit), and, also, even the exercise of discretion within the external limit should be appropriate for the purpose for which the law vests such discretion and observant of the constitutional law principles and the general principles of law(internal limit). Therefore, in the case of a deviation from discretion in excess of the external limit of the discretion or an abuse of discretion beyond the internal limit, such exercise of the discretion is in violation of the legal provision that is the basis of the discretion.

This legal principle is not only appropriate in the field of administrative law, but is also applicable to the exercise of public power in general. As such, also to the act of the President submitting a matter to the national referendum, apart from the difference in the degree of discretion vested thereto, this legal principle applies as is.

Therefore, in the President's decision concerning the submission of a matter to the national referendum, where there is a deviation from or an abuse of discretion, such an exercise of discretion is in violation of Article 72 of the Constitution that is the basis of the discretion.

(2) Deviation from or Abuse of Discretion

In determining whether or not there is a deviation from or an abuse of discretion, specific standards for the judgment include (i) the conformity to the legislative purpose and spirit of the legal provision vesting the discretion, (ii) the observance of the constitutional principles and the general principles of law and (iii) the justness of the motive, of the particular exercise of discretion in question.

(A) Conformity to Legislative Purpose and Spirit

1) Bound by Legislative Purpose and Spirit

The discretion in exercising public power is vested to the state organs by law, thus should be exercised in a way appropriate to the legislative purpose and the legislative spirit of the legal provision that is the basis of the discretion. Therefore, in the President's exercise of discretion concerning the submission of a matter to the national referendum, such discretion should be exercised in a way appropriate to the legislative purpose and the legislative spirit of Article 72 of the Constitution, which is the basis of such discretion. An exercise of discretion that is not in conformity with such legislative purpose and spirit, that is, the intended purpose of the system set forth by Article 72 of the Constitution, is a deviation from and abuse of discretion, and, as such, is in violation of Article 72 of the Constitution.

2) Intended Purpose of System Set Forth by Article 72 of the Constitution

Our Constitution adopts the representative democracy as the principle under which the national decisions are made by the President and the members of the National Assembly who are elected directly by the citizens, on behalf of the citizenry. At the same time, our Constitution adopts the elements of the direct democracy by setting forth the circumstances in Article 72 and Article 130, Section 2, of the Constitution, under which the citizenry directly makes the national decision by way of national referendum. Thus, Article 72 of the Constitution is not a provision simply providing for the authority of the President concerning the submission of a matter to the national referendum, but instead understood to be a provision providing for the systemic basis of the governing structure under our Constitution that also provides for the right of the citizens to vote on national referendum(Refer to, for example, 93 Gazette 574, 592, 2000Hun-Na1, May 14, 2004; 15-2(Vol. II) KCCR 350, 360, 2003Hun-Ma694, November 27, 2003; 13-1 KCCR 1431, 1439, 2000Hun-Ma735, June 28, 2001). In a pure representative democracy, the representative institution is in a delegation-representation relationship under which it represents the entire citizenry in abstract form. Specifically, this presupposes the free delegation relationship under which the voters may control the representative institution only by election, yet may not order or direct the representative institution concerning specific matters. On the contrary, a direct democracy is premised upon an order-bound delegation relationship under which, when the citizenry exercises sovereign power through the representative institution, the citizens in non-abstract form issue upon the representative institution a concrete order with binding force, and, upon failure to follow the order, the citizens may dismiss the representative institution.

Our Constitution, as indicated above, adopts a governing structure compromising the pure representative system and direct democracy, by adopting the representative system as the principle while employing direct democracy concerning national referendum. Therefore, the relationship between the representative institution and the citizenry that is presupposed by our Constitution is a free delegation relationship based upon the representative system in the area of general national policies, however, the order-bound delegation relationship based upon the direct democracy in the area of national referendum, i.e., concerning the policies that are subjected to the national referendum.

Therefore, concerning policies that are subjected to national referendum, the representative institution is bound by the actual intent of the non-abstract, actual, citizens. The representative institution may not make a decision that is inconsistent with the actual intent of the non-abstract, actual, citizens, nor may it disregard such actual intent in decisionmaking when its own decision is expected to be different from the citizens' actual intent.

3) Relation between Discretion and Actual Intent of the Citizens

The delegation concerning policies that are subjected to national referendum is an order-bound delegation, therefore, the citizens, who are the delegators as holders of sovereignty, may withdraw the delegation for a particular matter by specifying such a matter. Undertaking of national referendum upon a particular matter means that the citizens have withdrawn their delegation to the representative institution upon that matter and directly made a decision thereupon. Furthermore, when there is sufficient reason to deem that a majority of the citizens have the intent to withdraw delegation, that is, the intent to directly make a decision upon a particular matter and forego the decisionmaking by the representative institution, if the representative institution made its own decision in disregard of such intent, this would be directly against the legislative purpose and the legislative spirit of Article 72 of the Constitution adopting the national referendum system, and, as such, it would be a deviation from and abuse of discretion. This is equally applicable regardless of whether the decision of the representative institution and the actual intent of the citizens coincide with the merits of that particular matter.

On the other hand, as the representative institution may not make a decision that is inconsistent with the actual intent of the citizens concerning policies that are subjected to national referendum, decisionmaking inconsistent with the actual intent of the citizens is in itself beyond the limit of delegated authority, and, as such, a deviation from discretion in excess of the external limit of the discretion. Furthermore, even when the actual intent of the citizens has not yet been confirmed, when there is sufficient reason to deem that the intent of the representative institution is different from the actual intent of the citizens, if the representative institution disregarded the intent presumed to be the actual intent of the citizens and made a contrary decision, it would be against the legislative spirit and the legislative purpose of Article 72 of the Constitution and thus a deviation from and abuse of discretion.

4) Actual Intent of Our Citizens Concerning Relocation of Capital

The public opinion poll around January of 2004 when the Act at issue in this case was legislated and promulgated indicates that there were approximately equal opinions in favor of and opposition to the relocation of major national institutions and organs to a new administrative capital, while the public opinions at that time were undergoing a shift towards gradually decreasing approval and gradually increasing opposition. The January 2004 public opinion poll also indicates that, although there were more opinions in favor when the political authorities made a promise to determine this matter by national referendum, the opinions in opposition gradually increased as the possibility of national referendum diminished by the proposition of the bill for this Act at issue in this case and the President's statements. Public opinion polls after June of 2004 indicate that those who were of the position that the matter should be determined by national referendum were around sixty(60) per cent.

Pursuant to the above facts, it is concluded that there is sufficient reason to deem that, concerning the relocation of the capital including the relocation of major national organs to a new administrative capital, our citizens intended to withdraw delegation, that is, to directly determine this matter without delegating the matter to such representative institutions as the President or the National Assembly. Also, upon the merits of the matter, there is a sufficient reason to deem that our citizens have an intent opposing the relocation to the new administrative capital.

5) Subconclusion

Non-submission of the matter concerning relocation of the capital to national referendum notwithstanding the circumstances indicated above is against the legislative purpose and the legislative spirit of Article 72 of the Constitution. As such, such non-submission is an unconstitutional exercise of discretion as a deviation from and abuse of discretion.

(B) Violation of Constitutional Principles and General Principles of Law

In light of the fact that the decisionmaking by way of National Assembly's legislation has caused a deeper division of national opinions concerning the matter upon which many of the citizens desire and the President himself previously indicated his intent to submit to the national referendum, it is objectively clear that non-submission of the decisionmaking concerning the relocation of the capital to the national referendum lacks rationality. Therefore, such non-submission is in violation of the principle against arbitrariness.

In addition, the facts of the case indicate that the President publicly made an election pledge as a presidential candidate that he would submit the matter concerning the relocation of the capital to national referendum, and, after being elected as the President, promised to submit the matter to national referendum as an alternative; that the President did not completely exclude the possibility of national referendum until immediately after the enactment and the promulgation of the Act at issue in this case on January 16, 2004; and that the President, however, publicly announced non-submission to the national referendum subsequent to the seventeenth general election to constitute the National Assembly that took place on April 15, 2004. Adding to these facts the result of the public opinion polls indicated previously, it is ratified that the citizens have the trust in the submission to the national referendum and the trust in the representative institution that it will not act against the intent of the citizens, concerning the matter of the relocation of the capital. Non-submission of the matter of relocation of the capital notwithstanding such trusts is a betrayal of the above trusts of the citizens, and is thus against the principle of protection of expectation interest.

Then, non-submission of the decisionmaking concerning the relocation of the capital to national referendum is against the constitutional principle and the general principle of law, therefore, it is an unconstitutional exercise of discretion as a deviation from and abuse of discretion.

(3) Obligation to Submit to National Referendum

As examined above, non-submission of the decisionmaking concerning the relocation of the capital to the national referendum is a deviation from and abuse of discretion. Thus, should the President lawfully exercise discretion without deviation therefrom or abuse thereof, the President has no other choice but to submit the decisionmaking concerning the relocation of the capital to the national referendum. Therefore, the President is obligated to submit the decisionmaking concerning the relocation of the capital to the national referendum.

E. Whether the Complainants Have Right to Vote on National Referendum for Decisionmaking Concerning Relocation of Capital

(1) Content of Right to Vote on National Referendum

The right to vote on national referendum of Article 72 of the Constitution is a right to participate in politics, and one of the basic rights guaranteed in our Constitution(13-1 KCCR 1431, 1439, 2000Hun-Ma735, June 28, 2001).

The right to vote on national referendum as a basic right is, inter alia, in its substance, the right to request the guarantee of a free democratic national referendum system. Therefore, when, for example, a statute diminishes the scope of an important policy to a further extent than what is intended by Article 72 of the Constitution or corrodes the general, equal, direct, secret and free vote, its unconstitutionality may directly and actually be asserted on grounds of the right to vote on national referendum.

The right to vote on national referendum of Article 72 of the Constitution also includes the right to vote on national referendum upon a particular matter. Here, however, the right to vote on national referendum upon a particular matter is a right qualified by a condition precedent of the President's submission of that particular matter to the national referendum, therefore, this right becomes real only upon the act of the President submitting the matter to the national referendum. The right to vote on national referendum likewise realized encompasses the right to hold an actual national vote upon the particular matter.

The right to vote on national referendum of Article 72 of the Constitution further encompasses the right to request the submission of a particular policy to the national referendum, when the President does not submit such policy to national referendum notwithstanding the legal obligation to submit such policy to national referendum. The obligation of the President to submit to the national referendum is an obligation towards the citizens, therefore, the citizens as the holders of the right have the right to request submission to national referendum that is on the other side of the coin. In this case, the President is in breach of the obligation to satisfy the above condition precedent, while the right to request submission to the national referendum is a type of claimable right, requesting the performance of the above obligation. Therefore, the right to request submission to the national referendum in such a case is a right as an instrumental and procedural right to restore to the lawful state the state of unlawful infringement upon the citizens' right to vote on national referendum upon particular policy caused by the President's failure to perform the submission obligation.

As the right to request submission to the national referendum presupposes the existence of the right to vote on national referendum which is a substantive right, in such a case, the citizens have the right to vote on national referendum upon the particular matter from the substantive aspect of the right to request submission to the national referendum, even prior to the actual submission to the national referendum by the President. That is, the right to vote on national referendum encompasses as a partial content thereof the right to request submission to the national referendum.

(2) Right to Vote on National Referendum upon Decisionmaking concerning Relocation of Capital

As examined above, when the President is obligated to submit a particular policy to the national referendum, the citizens have the right to request submission of that policy to the national referendum and the right to vote on national referendum encompassing such right, even prior to the President's submission of that policy to the national referendum. In this case, as the President is obligated to submit the decisionmaking concerning the relocation of the capital to the national referendum as examined in Paragraph D(3) above, the citizens have the right to request the President to submit the decisionmaking concerning the relocation of the capital to the national referendum, and the concrete and actual right to vote on national referendum upon the above decisionmaking even prior to the actual submission by the President.

Therefore, the complainants who are the Korean citizens have the actual right to vote on national referendum of the above substance.

F. Whether the Act at Issue in this Case Infringes the Complainants' Right to Vote on National Referendum

(1) Infringement by Substance of the Act at Issue in this Case

There had been no decisionmaking by way of national referendum concerning the relocation of the capital, prior to the enactment and the promulgation of the Act at issue in this case. Here, as indicated in Paragraph A above, the Act at issue in this case connotes by presupposition within itself the decisionmaking to relocate the capital, and also Article 1 of its supplementary provision provides that "This Act shall come into force by the passage of three months of time of the promulgation," thereby providing that the Act at issue in this case will become unconditionally valid by the passage of three months of time without any separate undertaking of national referendum.

Therefore, the Act at issue in this case, in determining the national intent concerning the relocation of the capital, conclusively excludes national referendum therefor and has the final decision rendered in the form of the statute. Such exclusion of the national referendum inevitably results in the infringement upon the above-examined right of the complainants to vote on national referendum upon decisionmaking concerning the relocation of the capital, by the enforcement of the statute by and in itself.

(2) Infringement by Succession of Defect in Proposition of the Bill

The bill for the Act at issue in this case was proposed by the government. The legislative bills proposed by the government are proposed in the name of the President following the review by the State Council(Articles 82 and 89 of the Constitution). Here, the bill for the Act at issue in this case was, as is identical to the above-examined Act at issue in this case, to exclude the right of the citizens to vote on national referendum, concerning the relocation of the capital. Therefore, the government's proposition of the bill of such substance may be judged to be a public decision by the President not to undertake the national referendum concerning the relocation of the capital.

Here, as examined in Paragraph D above, non-submission by the President of the decisionmaking concerning the relocation of the capital to national referendum is a deviation from and abuse of discretion. Thus, the act of the President as indicated above to propose the bill for the Act at issue in this case based upon the decision not to undertake national referendum, is a defective conduct in violation of Article 72 of the Constitution, as a deviation from and abuse of discretion.

The act of the President of proposing a bill to the National Assembly is no more than a conduct internal between state organs and institutions, and is not a conduct executing legal effect directly upon the citizens. Therefore, such act is not an exercise of public power within the meaning of Article 68 of the Constitutional Court Act, thus may not be a subject matter of review by way of constitutional complaint(6-2 KCCR 249, 265, 92Hun-Ma174, August 31, 1994).

However, the act of the President of proposing a bill to the National Assembly constitutes the core procedure in the legislative process of a statute, together with the resolution of the National Assembly enacting a statute. These two acts are in the relationship under which one precedes the other for a single purpose. Thus, should there lie a defect in the act of the President of proposing a statutory bill to the National Assembly, such defect may in itself be deemed as the defect in the enactment of the statute, or, at least, may be deemed as the defect in the enactment of the statute by succession of such defect in the act of proposing the statutory bill to the act of resolution of the National Assembly in enacting the statute.

As examined above, as there is a defect of violation of Article 72 of the Constitution in the act of the President proposing the bill for the Act at issue in this case to the National Assembly, such defect is succeeded by the act of the National Assembly enacting the above bill into the statute. Therefore, the Act at issue in this case itself is deemed to have the same defect, thus eventually infringing on the right to vote on national referendum, which is a constitutional basic right of the complainants.

(3) Subconclusion

The enactment and promulgation of the Act at issue in this case has infringed the right of the complainants to vote on national referendum under Article 72 of the Constitution, which is a constitutionally guaranteed fundamental right.

G. Customary Constitutional Law and the Right to Vote on National Referendum of Article 72 of the Constitution

(1) Object of National Referendum Under Article 72 of the Constitution and Customary Constitutional Law

The 'important policy concerning national security such as diplomacy, national defense and unification' that is the object of the national referendum under Article 72 of the Constitution does not require as an element that it be a constitutional law matter. Thus, such a policy needs not be a constitutional law matter.

Therefore, even assuming, as the majority opinion does, the existence of the customary constitutional law that "the capital of the Republic of Korea is Seoul," the decisionmaking concerning the transfer of the capital is still an object of national referendum under Article 72 of the Constitution, which obligates the President to submit this matter to the national referendum for the reason discussed above, while entitling the complainants with the right to vote on national referendum upon this matter.

(2) Relationship Between Right to Vote on National Referendum Under Article 72 of the Constitution and Right to Vote on National Referendum Under Article 130 of the Constitution

(A) If the location of the capital is a constitutional norm, decisionmaking concerning the change therein, that is, decisionmaking concerning the transfer of the capital, should be rendered pursuant to the constitutional revision procedure under Chapter 10 of the Constitution, therefore by way of the resolution of the National Assembly and the national referendum pursuant to Article 130 of the Constitution, which entitles in turn the citizens with the corresponding right to vote on national referendum.

(B) On the other hand, even for a matter eventually requiring a constitutional revision, a national referendum pursuant to Article 72 of the Constitution may be undertaken in order to inquire into the actual intent of the citizens prior to the proposition of the bill for the constitutional revision. It is because the direction of the policy may be determined by such national referendum and then a concrete constitutional revision procedure may proceed based thereupon. Therefore, the national referendum under Article 130 of the Constitution does not preemptively exclude the national referendum under Article 72 of the Constitution.

However, national referendum under Article 72 of the Constitution may be lawfully undertaken to the extent that it does not preclude the national referendum under Article 130 of the Constitution. As the undertaking of national referendum under Article 72 of the Constitution is meaningless once national referendum under Article 130 of the Constitution is undertaken, the right to vote on national referendum under Article 72 of the Constitution exists upon the condition subsequent of the undertaking of the national referendum under Article 130 of the Constitution.

The above relationship between the two rights to vote on national referendum equally stands whether a policy matter is a matter of written constitution or of unwritten constitution, as long as that policy matter is one requiring constitutional revision. (C) Further Relationship in the Case of Matter of Customary Constitutional Law, in Addition Thereto

The legal conviction among the citizens with respect to the constitutional practice as one of the elements constituting the customary constitutional law(that is, the 'national consensus' mentioned in the majority opinion) is, at the same time, an element for the maintenance of the customary constitutional law. Therefore, even a constitutional custom previously established as such may no longer have the force as the constitutional norm, the moment it loses the legal conviction of the citizens thereupon.

Judgment upon the existence of such legal conviction of the citizens is subject to the authority and the obligation of the Constitutional Court, which interprets the existence and nonexistence of the constitution. Therefore, the adjudication by the Constitutional Court is one of the methods of confirmation thereof.

Also, as determining the existence and nonexistence of such legal conviction of the citizens is within the meaning of the important policy concerning the national security set forth in Article 72 of the Constitution(that is, the above determination itself is an important policy concerning national security, however, even assuming different opinions, there would hardly be an opinion denying that determination of the existence and nonexistence of the legal conviction of the citizens upon the location of the capital is such a policy), such determination is an object of national referendum under Article 72 of the Constitution. Should there be a decision reached by way of national referendum that is inconsistent with the previously existing customary constitutional law, as this will be the confirmation for the loss of legal conviction of the citizens, the national referendum under Article 72 of the Constitution may be yet another method of conclusive confirmation thereof.

Then, in order to make a decision that is inconsistent with the previously existing customary constitutional law in a constitutional way, it should be rendered by way of one of the following methods: (i) constitutional revision procedure under Article 130 of the Constitution; (ii) national referendum under Article 72 of the Constitution to confirm the loss of legal conviction of the citizens, as a preliminary procedure; or (iii) confirmation of the loss of legal conviction of the citizens by way of the judgment of the Constitutional Court, as a preliminary procedure. The citizens have the right to vote on national referendum under Article 130 of the Constitution with respect to the method (i) above, and the right to vote on national referendum under Article 72 of the Constitution with respect to the method (ii) above. The above respective rights to vote on national referendum are alternative to each other.

(3) Infringement Upon Right to Vote on National Referendum by the Act at Issue in this Case

In light of the above in totality, upon the premise that the customary constitutional law that the "capital of the Republic of Korea is Seoul" has existed, the complainants, as Korean citizens, have the right to vote on national referendum of Article 130 of the Constitution, the right to vote on national referendum of Article 72 of the Constitution on the condition precedent of undertaking of the national referendum under Article 130 of the Constitution, and the right to vote on national referendum of Article 72 of the Constitution that is an alternative right to the right to vote on national referendum of Article 130 of the Constitution, upon the decisionmaking concerning the relocation of the capital.

Here, the Act at issue in this case excludes all of the above respective rights to vote on national referendum. Therefore, upon the premise of the existence of the above customary constitutionallaw, the Act at issue in this case is a statute infringing all of the above respective rights to vote on national referendum.

(4) Questions Concerning Majority Opinion

(A) The majority opinion admits the possibility of national referendum under Article 72 of the Constitution as a method to confirm the extinction of the customary constitutional law. Yet, the majority opines that, as the change in or the extinction of the legal conviction of the citizens that the capital of the Republic of Korea is Seoul may not be confirmed, the abolition thereof should be by way of the constitutional revision procedure, thus, the right to vote on national referendum of Article 130 of the Constitution is infringed.

Such reasoning is to the effect that, where there is no confirmation of the change in or the extinction of the legal conviction of the citizens, the national referendum under Article 72 of the Constitution may not be undertaken, but, instead, the national referendum under Article 130 of the Constitution should always be undertaken. This reasoning leads to the conclusion that the sole occasion where the existence or nonexistence of the legal conviction of the citizens may be confirmed by way of the national referendum of Article 72 of the Constitution is when the change in or extinction of the legal conviction of the citizens has already been confirmed by other means. However, when the change in or extinction of legal conviction of the citizens has already been confirmed by other means, there is no need for the undertaking of the national referendum under Article 72 of the Constitution. Rather, when such fact is not confirmed, there is a need for the undertaking of the national referendum under Article 72 of the Constitution, in order to conclusively confirm such change or extinction.

Furthermore, beyond the case where the existence or nonexistence of the legal conviction of the citizens is unclear, even when the existence of such legal conviction is still presumed, the national referendum under Article 72 of the Constitution may be used in order to officialize, over the enforcement of national policy that is contrary to the legal conviction of the citizens, the continuing existence of such legal conviction. Thus, the national referendum may be undertaken not only when the result is the extinction of the legal conviction, but also when the result is the continuing existence of the legal conviction. As such, the existence of the right to vote on national referendum is not dependent upon the expected result of the national referendum. In addition, such expectation over the legal conviction may differ from reality. Also, the legal conviction is subject to change, and a firm legal conviction at one point of time may become extinct subsequently, which solemnly leaves the possibility of national referendum concerning this. Therefore, unless the existence and the nonexistence of the legal conviction of the citizens is confirmed by a constitutional and official means such as the national referendum under Article 130 of the Constitution, the citizens retain the right to vote on national referendum of Article 72 of the Constitution, as an alternative thereto.

Therefore, there remains a question with respect to the reasoning of the majority opinion that the constitutional revision process is mandatory as the change in or the extinction of the legal conviction of the citizens is not confirmed.

(B) Pursuant to the majority opinion, the decisionmaking concerning the relocation of the capital should only be by way of the constitutional revision procedure, the result of which is that any subsequent change in the location of the capital will have to be expressly included in the text of the Constitutional.

Even assuming that the location of the capital is a constitutional norm, it may exist either in the form of written constitutional provision or in the form of unwritten constitutional norm, of which our citizens have chosen the form of unwritten norm so far. Whether to have a constitutional norm in the form of written provision or in the form of unwritten norm may be determined solely by the holder of the authority to establish and revise the constitution. Should the form of the norm with respect to the location of the capital change from a customary constitutional law into a written constitutional norm as the result of the majority's decision of the Constitutional Court, this is not different from the de facto exercise of the authority to revise the constitution by the Constitutional Court.

Rather, pursuant to what is examined in Paragraph D(2) above, it is inferred that national referendum desired by the actual intent of our citizens is the one under Article 72 of the Constitution, rather than the national referendum under Article 130 of the Constitution as part of the constitutional revision procedure premised upon the resolution of the National Assembly. Therefore, should the majority opinion lead to the above result, this is against the intent of the holder of the authority to revise the constitution.

On the other hand, the majority opinion may be understood to mean that the form of the constitutional norm with respect to the location of the capital is not limited to the written provision because, while a constitutional revision procedure is mandatory when the legal conviction continues to exist, the change of the location of the capital upon extinction of the legal conviction may be regulated by a new customary constitutional law. However, while this is premised upon the possibility of subsequent extinction of the legal conviction and the possibility of national referendum to confirm such extinction, if the Act at issue in this case that excludes the constitutional revision procedure also excludes the possibility of national referendum to confirm the extinction of the legal conviction, it is an infringement not only upon the right to vote on national referendum of Article 130 of the Constitution, but also upon, additionally, the right to vote on national referendum of Article 72 of the Constitution. The citizens, just as they may disapprove the change of the location of the capital during the constitutional revision procedure, may disconfirm the extinction of the legal conviction at the national referendum under Article 72 of the Constitution.

Furthermore, even if the majority's opinion in this case is understood to confirm by their judgment the continuing existence of the legal conviction of the citizens, as long as there remains the possibility of the national referendum of Article 72 of the Constitution that may be undertaken as a preliminary procedure for the constitutional revision procedure, it is clear that the Act at issue in this case infringes upon the right to vote on national referendum under Article 72 of the Constitution.

(C) Upon occurrence of a situation where the right to vote on national referendum is infringed with respect to a matter of an important policy concerning national security which is not a constitutional law matter, the majority opinion is not clear as to in which method the basic right of the citizens shall be guaranteed. Abstention of judgment upon the above situation of infringement based on a different reasoning, when it is clear that the Act at issue in this case infringes upon the right to vote on national referendum of Article 72 of the Constitution, does have an inappropriate aspect, considering its pervasive effect upon similar issues that may subsequently be raised.

(D) More fundamentally, there may be different opinions with respect to whether the location of the capital is a constitutional law matter that should always be regulated by the constitution, and, there may be difficulty in concluding that it is a customary constitutional law. In my opinion, the majority opinion has taken a rather overstrained way that adopts the method of constitutional revision as its logical premise, while there are ample means to rectify the unconstitutional state within the frame of the current constitution without necessarily borrowing the form of constitutional revision.

(5) Subconclusion

Even assuming, as the majority opinion does, that there exists the customary constitutional law that the capital of the Republic of Korea is Seoul, it is soundly judged that the Act at issue in this case infringed the right of the complainants to vote on national referendum of Article 72 of the Constitution, while there are unreasonable aspects in judging that the Act infringes the right to vote on national referendum of Article 130 of the Constitution by the majority's reasoning.

H. Whether there is Justifiable Ground for Infringement of Fundamental Right

(1) Function of Article 37, Section 2, of the Constitution in the System of National Referendum

Although the complainants have the right to vote on national referendum under Article 72 as a basic right, this may be limited by statute when it is necessary for national security, public order or public welfare, pursuant to Article 37, Section 2, of the Constitution. Therefore, even when, for example, there is a substantial reason to conclude that the actual intent of the citizenry is to determine a particular policy by national referendum and non-submission of such policy to the national referendum is thus a deviation from and abuse of discretion, thereby obligating the President to submit such policy to the national referendum and entitling the citizens to have the right to vote on national referendum upon such matter, should the limitation of the right of the citizens to vote on national referendum by non-submission of the policy to the national referendum be justified under Article 37, Section 2, of the Constitution, that is, if the limitation is appropriate under the requirements for the limitation of the basic rights in terms of the purpose, form and means, the limitation of that particular right to vote on national referendum is not in violation of the Constitution.

Therefore, the concern that some individuals might challenge the constitutionality of each of the national policies by alleging the infringement of the right to vote on national referendum is no more than a groundless apprehension. As long as the limitation upon the right to vote on national referendum is imposed in a reasonable fashion under the requirements of Article 37, Section 2, of the Constitution by way of the statute enacted by the National Assembly, there is no violation of the Constitution.

(2) Whether the Act at Issue in this Case is Justifiable

The Act at issue in this case states its purpose in Article 1 by providing that "the purpose of this Act is to provide for the means and procedures to establish a new administrative capital, in order to remedy the adverse side effects of the concentration of pivotal functions in the Metropolitan area, and to follow the trend of concurrent globalization and localization, thereby contributing to the balanced development and strengthened competitiveness of the nation." However, among such purposes, no legislative purpose is included that will determine the intent concerning the relocation of the capital solely by the resolution of the National Assembly by foregoing the national referendum, nor is there any need to exclude national referendum for the national security, public order or public welfare.

Therefore, there is no justifiable ground for the limitation of the right of the complainants to vote on national referendum by the Act at issue in this case.

I. Conclusion

There is no express provision within the Act at issue in this case that declares the fact itself that the decisionmaking concerning the relocation of the capital is to be rendered by excluding the right to vote on national referendum. The provisions that have the substance similar to the above, however, include Subsections 1 and 2 of Article 2, Article 6, Article 8 and Article 12 of the Act, and also Article 1 of the Supplemental Provisions to the Act.

However, as examined above, the interpretation of the Act at issue in this case as rendering the decisionmaking concerning the relocation of the capital by excluding the right to vote on national referendum is reasonably inferred from the Act at issue in this case in its entirety, as well as the above provisions. Therefore, not only the provisions specified above but also the Act at issue in this case in the entirety infringes the right of the complainants to vote on national referendum.

In addition, even assuming that only above-specified provisions are held unconstitutional, the rest of the provisions meaningfully exist on the premise of the decisionmaking of the relocation of the capital thus may not be validly enforced by and in themselves. Therefore, the entire Act at issue in this case becomes unenforceable, and it is appropriate to hold the Act unconstitutional in its entirety.

Then, the Act at issue in this case is violative of the Constitution in its entirety as it infringes the right of the complainants to vote on national referendum that is a basic right guaranteed by Article 72 of the Constitution. Therefore, the Act at issue in this case is hereby held unconstitutional, without further review upon other issues asserted.

7. Dissenting Opinion of Justice Jeon Hyo-sook

A. I agree with the majority opinion with respect to the point that the Act at issue in this case includes and presupposes the decisionmaking of the relocation of the capital. However, I respectfully disagree to the reasoning of the majority that the Act at issue in this case infringes the right of the complainants to vote on national referendum as the relocation of the capital may only occur by way of constitutional revision procedure, under the interpretation of our constitution. Thus, I state my opinion as follows.

(1) First, we should consider the degree of the constitutional importance of the location of the nation's capital under the current constitutional theory of constitutionalism and the welfare state.

Historically, the location of the capital was an important matter concerning the identity of the nation. However, under the Constitution of the current constitutionalism, this can hardly be deemed as either a fundamental matter of the constitution or a matter that should be determined directly by the citizens under the principle of people's sovereignty. The fundamental purpose of the constitution is the realization of the liberty and the right of the citizens through the control and the rationalization of the state power. That is, the basic principle of our constitution is the realization of government by the rule of law that is dedicated to protecting the basic rights of the citizens against the abuse of state power(4 KCCR 225, 230, 90Hun-Ba24, April 28, 1992). The location of the capital is no more than a "tool" to realizing such purpose of the constitution, and may hardly be deemed as a matter that directly affects the realization of such purpose. There is still currently a demand for a 'source of emotional unity' among the citizens, yet, as long as free democracy and constitutionalism are the major values of our nation, the location of the capital in and by itself cannot decisively be a matter that should be necessarily determined directly by those with the authority to establish or revise the constitution. (2) The customary fact that "Seoul is the capital" may hardly be recognized as the legal norm of "customary constitutional law" as the majority opinion states.

Even if the fact that Seoul is the capital is a customary practice that has self-evidently been perceived by our people for a long period of time as the majority opinion demonstrates through detailed materials from the aspect of long history and tradition, it may hardly be recognized to have legal conviction, that is, as "something of which all citizens have the cognizance as an enforceable legal norm concerning the Constitution and organization of our nation," as the majority opinion states. The majority opinion may be valid when the object of such legal conviction is not only in the form of a norm that Seoul is where major constitutional institutions and organs are located in the symbolic meaning, but also containing the meaning that it is above the general statutes as the constitution in the substantive sense and that it has the force equivalent to that of the written constitution, that is, the force to the degree that it should be revised only by the constitutional revision procedure. However, concluding that it has all of such legal convictions is unreasonable in light of the fact that the relocation of the capital has only recently been a major issue in our society. More than anything else, in the legislative process of the Act at issue in this case, the members of the National Assembly from both the ruling party and the opposition party gave overwhelming support to the bill for this Act, while there was no indication whatsoever, manifested during the legislative review process, of the perception of the members of the National Assembly concerning that the matter of relocation of the capital was a constitutional law matter over which the citizens had constitutional conviction or that it could not be an object of their legislation as a change thereto should be through the constitutional revision procedure.

The majority opinion has an unavoidable gap in its legal logic as it infers a normative constitutional proposition that "Seoul should be the capital" from a factual proposition that "Seoul is the capital."

(3) Under the legal system of written constitution, customary constitutional law may not be deemed to have the "same" force as that of the written constitution, or force that "may invalidate particular provisions of the written constitution."

The reason why customary constitutional laws are recognized and acknowledged is, as the majority opinion indicates, that it is "impossible for a written constitution to completely regulate therein all constitutional law matters without omission." However, even if the customary constitutional law is recognized and acknowledged, no ground exists for the recognition of the force identical to that of the written constitution merely by the fact that it is established as the customary constitutional law, for the code of written constitution has the utmost superiority within the nation's legal system as it is established directly by the citizens who are the holders of the authority to establish the constitution through "express" representation of the intent, and the revision of its content is governed by a rigid procedure. Such codification of the constitution is to realize, with firm stability that is objectively unchallengeable, the control of state power and the maximum guarantee of human rights intended by the constitution. The characteristic of the written constitution is, inter alia, its retention of the strong power binding all state powers as the supreme legal norm, which is rendered possible by convergence of express intent of the people's sovereignty through specific constitutional establishment procedure. As custom alone may not retain such supreme power that characterizes the constitution, the rationale of the majority opinion that the written constitution and the customary constitutional law have the identical force lacks constitutional ground. The construction of the constitution by the Constitutional Court should begin from the Constitution, and the unwritten constitution that appears in the form of case law should also be based upon the Constitution.

Customary constitutional law under the written constitution system should be deemed to have no more than a supplementary force. As long as a written constitution with rigid requirements for revision exists, no customary constitutional law or unwritten constitution may be established or may exist apart from the written constitution, and, the customary constitutional law or unwritten constitution may be established and may exist only by developing, completing and constantly forming various principles of the written constitution, and by harmonizing with such principles. Otherwise, it would mean that constitutional practices might vary with the written constitution, ultimately resulting in the precedence of unwritten constitutional practices over the text of the written constitution and the overwhelming control of the nation by such practices. Therefore, the customary constitutional law may only be recognized to the extent it supplements the written constitution, and no force changing the written constitution may be recognized for the customary constitutional law.

This legal principle equally applies when the substance of the customary constitutional law is a "constitutional law matter" that is significant to the extent that it should be regulated directly by the constitution. There is no ground to recognize the force changing the substance of the written constitution by the existence of such customary constitutional law. This would harm the constitutional stability and it would not conform to the will of the framers of the constitution that established the written constitution with rigid requirements for revision. Even with respect to matters for which there was no need for codification as self-evident at the time of the establishment of the constitution, the citizens may always exercise the authority to revise the constitution to include in text such constitutional law matter existing in the form of a custom through their representatives and by way of national referendum, thereby endowing the force of the written constitution. Just as we may not punish a matter that should be punished as long as it is not regulated by the statute as punishable, the legal force cannot but differ depending upon whether it is regulated in the written constitution or not.

(4) The majority opinion reasons that customary "constitutional" law as opposed to the customary "statute" is part of the "constitution" thus its change should follow the constitutional revision procedure. However, this is excessive adherence to a formalistic conceptual logic and fails to adequately reflect the substance.

The written constitution does not possibly contain all of the constitutional law matters, and statutes and customary laws occasionally contain such matters which are commonly referred to as the "constitution in the substantive means." The "customary constitutional law" merely means that the constitutional law matters in the substantive means are regulated by customs, and the "customary constitutional law" does not immediately have the force identical to that of the "written constitution." While the strong force of the written constitution is due to the representation of the express intent of the people's sovereignty through the specific constitutional revision procedure, the custom is recognized not through such express intent or specific procedures, but by the elements of the existence of the practice and the legal conviction of the citizens that are not easily perceived objectively or clearly.

The majority opinion, in order to recognize a force identical to that of the written constitution by bypassing this problem, limits the customary constitutional law to the "fundamental matter of constitutional importance that should be regulated by the constitution and have superiority in its force over statute" or the "core fundamental matter that may not be appropriately regulated by statute." Such limitation of the concept is inappropriate as, inter alia, it excessively narrows the "constitutional custom necessary for the supplementation of the written constitution" and makes it difficult to recognize customary constitutional law in the future.

On the other hand, the "fundamental matter of constitutional importance that should have superiority in its force over statute" is not determined a priori, nor is it interred by logic from any proven proposition. Further, there is no standard under the constitutional logic for the "matter that may not be appropriately regulated by statute." Even a matter that may be regulated by statute is given constitutional force when it is regulated in the constitution, and it may not be deemed as a fault when a matter that may deserve regulation in the constitution is regulated by statute. The majority opinion mentions the capital, the Korean language as our official language and the Korean alphabet as our official alphabet that are not regulated in the Constitution as the matters concerning the identity of the nation, however, there is no clear logical ground why such matters should not be regulated by statute. The majority opinion states that such matters are the "matters upon which the citizens should directly make decisions." However, it is questionable why the National Assembly as the representative institution may not determine such matters by collecting the democratic intent of the citizens, and whether the result will vary if the constitutional revision procedure takes place inside the legislature and does not mandate the national referendum as in certain other nations. In the cases of the national flag, i.e., the Taegukgi, and the Korean alphabets as our official alphabets, although these are also fundamental matters relevant to the identity of the nation, they are respectively regulated by the Regulation on the Official Flag of the Republic of Korea(Issued February 21, 1984, Presidential Decree No. 11361) and the Exclusive Usage of the 'Hangul' Act(October 9, 1948, Statute No. 6). Such forms of regulation may not be deemed as a fault.

Decision of the location of the capital is also a constitutional law matter in the substantive sense, and the regulation thereof at the level of statute may not be deemed as a violation of the constitution. The matter that should be regulated in the text of the Constitution or the matter that should have the force of the supreme law may not be logically drawn by inference. Neither the regulation of the capital by statute nor the relocation of the capital by the legislative process at the National Assembly without constitutional revision procedure causes a contradiction in our legal system or impairment to the meaning of the written constitutional provisions.

The customary constitutional law such as the capital does not necessarily have to be changed in the legislative form of a constitutional revision. The revision of the constitution means an express alteration or change of the provision or the language in the constitutional text pursuant to the specific procedure in order to enhance the normative function of the constitution. Therefore, the revision of the constitution is a concept relevant to the constitution in the "formal sense," that is, the written constitution. The reason the framers of the constitution set forth a far more rigid procedure for the revision of the constitution than the general statute is, to deter arbitrary changes of the substance of the constitutional text, which is an express representation of the will of the sovereign. On the contrary, changes in the constitutional law matters that are not contained in the constitution or the unwritten constitution do not constitute constitutional revision, and may be handled by the general procedure of representative democracy established by our constitution, that is, the enactment of statute. Then, in order to accept the customary constitutional law as the object of the constitutional revision, there should be an extremely strict logical justification beyond a "formalistic logic of concept," which the majority opinion fails to present.

The majority opinion seemingly assumes that the National Assembly enacted the Act at issue in this case without adequate collection of the intent of the citizens. However, if the National Assembly hastily enacted the Act under party politics while failing to represent the will of the people with respect to such an important matter as the relocation of the capital, as long as it was not violative of the procedures of the Constitution and the National Assembly Act, as the National Assembly is no more than a representative institution that is to represent the will of the citizens, the citizens who had constituted such National Assembly are, unavoidably, ultimately responsible for such legislation.

On the other hand, pursuant to the reasoning of the majority opinion, no matter how the National Assembly employed sufficient procedures to collect the will of the citizens such as a hearing in the legislative process of the Act at issue in this case and unanimously passed the bill as the Act, the Act is unconstitutional solely on the formalistic ground that the constitutional revision procedure was not followed. Such a conclusion can hardly be deemed as reasonable. (5) Should the constitutional revision be mandatory for the change of the customary constitutional law that "Seoul is the capital," this may not be permissible as an alteration by the customary constitutional law of the legislative power of the National Assembly endowed by the Constitution.

The interpretation that the Act at issue in this case is unconstitutional, which the majority opinion adopts, on the ground that the Act alters the customary constitutional law without constitutional revision procedure, is a recognition of the power of the customary constitutional law that is superior to the legislative power of the National Assembly. The Constitution provides that "The legislative power shall be vested in the National Assembly."(Article 40), and the object of the legislative power of the National Assembly is general, unless otherwise provided in the Constitution. The subject of legislative power is none other than the representative institution that is directly elected by the citizens as representatives of the citizens. The Constitution adopts as a basic form representative democracy as a means to realize the people's sovereignty and free democracy, rendering the representative institution whose democratic justification is endowed upon by election by the citizens, implement the ideology through the legislative function. Therefore, the legislation by the National Assembly pursuant to the procedure and substance established by the Constitution is the representation of the intent of the entire citizenry and is justified as such. The recognition of the "sovereignty of the Parliament" in the United Kingdom and the irrebuttable presumption of the statute enacted by the legislature as the 'expression of the general intent' of the citizenry in France show the close relationship between the citizens and the legislature. Then, it is hard to find any substantive reason why the change of the customary constitutional law such as the relocation of the capital cannot be done by the enactment of a statute by the National Assembly, where there is no particular constitutional provision limiting this. Many of the nations allow the legislature to revise the Constitution merely by way of an increased quorum(commonly by the vote of the majority of the entire membership and the minimum of two-thirds of the votes in favor thereof) compared with the statutory revision without direct vote(i.e., the national referendum) of the citizens. This is because the National Assembly is none other than the representative institution of the citizens, a major state organ that executes the sovereignty of the citizens as the representative. The Act at issue in this case was passed by 167 votes in its favor out of 194 members who participated in the vote(13 oppositions and 14 abstentions), thus by an overwhelming majority beyond the majority of the entire membership and two-thirds of the votes. It may not be, at least from the aspect of the constitutional law, concluded that such legislation was "beyond the authority of the members of the National Assembly," aside from the possibility that such legislation may be politically blamed as an inadequate reflection of or a betrayal of the intent of the citizens. Such a conclusion should not be permitted as it denies the legislative power and authority of the National Assembly under the Constitution by way of the customary constitutional law, which is the alteration of the constitution.

The customary constitutional law that has not followed the procedure for the establishment or revision of the constitution should not be given force "identical" to that of the written constitution or one that "alters other constitutional provisions." This logic is beyond the written constitution system, and acknowledges in the form of case law the exercise of the people's sovereignty that is not by a method intended by the Constitution. The exercise of the people's sovereignty under the written constitution system should be within the boundary of the written constitution, unless it falls into a special exception such as the exercise of the right to resistance. It is realistically difficult for the state institutions or the Constitutional Court to confirm what is a true intent of the citizens, and there may be disagreements and conflicts among the citizens over particular matters. Therefore, recognizing the "exercise of the people's sovereignty" in a way external to the constitutional law that is not an institutionalized procedure objectively regulated by the Constitution, should not be permitted.

The majority opinion presents the principle of the people's sovereignty by indicating that "the formation of the constitutional norms by way of custom is one aspect of the exercise of the people's sovereignty." However, it is unclear what extent of the intent of the citizens such exercise of the people's sovereignty pertains to, and whether the procedure of collecting the intent is equivalent to the procedure for the establishment and the revision of the constitution. It is inappropriate to acknowledge such exercise of the people's sovereignty by way of constitutional interpretation, which is not by way of a method expressly and objectively institutionalized by the Constitution.

Should the exercise of the people's sovereignty in a way not institutionalized in the Constitution be permitted, neither procedural justification nor democratic justification would be guaranteed; rather, it would endanger the constitutional order of the nation by causing a confusion therein. Such a result should be avoided no matter how important and exceptional a matter is. A matter that is not regulated in the Constitution should be dealt with by the political decisionmaking structure, as long as it does not concern the emergency circumstance of the state. If the Act at issue in this case has failed to adequately represent the intent of the citizens, the citizens may even at this point attempt to revise the Act by conveying their intent through the representative institution. If the members of the National Assembly ignore such demand at the dimension of party politics, they will fail to win at the next election, and, currently, the citizens who elected such members of the National Assembly are politically responsible for this.

(6) In conclusion, the change of the customary constitutional law that Seoul is the capital is not a matter mandating constitutional revision, nor is there any ground under the current Constitution to deem that it may not be undertaken by the legislation by the National Assembly. Therefore, it may not be deemed that there is a possibility for the Act at issue in this case to infringe the right to vote on national referendum of Article 130, Section 2, of the Constitution.

B. On the other hand, although I agree with the separate concurring opinion that a prudent procedure to collect the public opinion is necessary for the relocation of the capital as it is an important state policy, I respectfully do not agree with its reasoning that the Act at issue in this case infringes the right to vote on national referendum of Article 72 of the Constitution. My opinion with respect to this point is stated as follows.

The separate concurring opinion opines that the President's non-submission of the matter concerning the relocation of the capital to the national referendum under Article 72 of the Constitution is an abuse of discretion and thus infringes the right to vote on national referendum.

However, as far as Article 72 of the Constitution endows discretion upon the President with respect to whether to submit an 'important policy concerning the national security' to a national referendum(16-1 KCCR 609, 649, 2004Hun-Na1, May 14, 2004), an interpretation that the President's discretion varies dependent upon the importance of a matter does not stand.

Aside from a discussion of whether Article 72 of the Constitution endows excessive discretion upon the President and can therefore be an effective system to realize the principle of people's sovereignty and direct democracy, there is no ground under the current Constitution for an interpretation different from the above.

As far as the above provision endows upon the President the discretion to determine whether or not to submit a matter to the national referendum, the right to vote on national referendum under this provision is a right that may be exercised upon the President's submission, and the scope of protection of this right may not be expanded to include a demand to obligate the President to submit a particular important policy matter to the national referendum. In addition, as such discretion is endowed directly by the Constitution, the legal principle of deviation from and abuse of discretion of the administrative law may not apply. Should the President submit a matter that is not an object of Article 72 of the Constitution as in the case of national referendum requesting a confidence vote on the President, this is a violation of the requirements under the express provision of Article 72(an "important policy concerning the national security"), yet, it is not a deviation from or abuse of discretion. In addition, as our Constitution adopts as the foundation the representative democracy, under which the representatives of the citizens directly elected by the citizens determine the intent of the nation on behalf of the citizens, as long as such representative democracy functions normally, there is no constitutional ground to deem that such a matter as the relocation of the capital should necessarily be determined by the direct vote of the citizens.

Then, in this case, although the President did not submit the policy concerning the relocation of the administrative capital to the national referendum thus resulting in the non-exercise of the right to vote on national referendum, there is no possibility that this has infringed the right of the complainants to vote on national referendum.

C. For the foregoing reasons, the assertion of the complainants that their right to vote on national referendum has been infringed is inappropriate, as the possibility of infringement upon such right itself does not exist. The assertion of the complainants in this case of the infringement upon other basic rights, although not discussed in detail here, also lacks the requirements of self-relatedness, directness or presentness of the infringement of the basic right. In conclusion, this case is inappropriate for a review on its merits by the Constitutional Court upon constitutional complaint, which is the last and supplemental resort for the relief of the "infringement of the basic right."

Justices Yun Young-chul(Presiding Justice), Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe, Jeon Hyo-sook, and Lee Sang-kyung(Assigned Justice)

[Appendix Ⅰ] the list of the complainants [omitted]

[Appendix Ⅱ] the list of Supplementary Participants [omitted]

Source

• Relocation of the Capital City Constitutional Court of Korea