Translation:Constitutional Committee Act (1973)

Chapter I Organization

Article 1 (Purpose)

The purpose of this Act is to set forth provisions necessary for the organization and operation of the Constitutional Committee.

Article 2 (Duties of the Constitutional Committee)

The Constitutional Committee shall judge the following matters:

1. Constitutionality of statutes upon the request of ordinary courts;
2. Impeachment;
3. Dissolution of political parties.

Article 3 (Qualifications of Members)

(1) Members of the Constitutional Committee shall be appointed from among those falling under any of the following subparagraphs:

1. A person who held the offices of the President, the Prime Minister, member of the State Council, or Minister of Government Legislation;
2. A person who has been a judge, prosecutor, or lawyer for more than 20 years;
3. A person who is qualified as a judge, prosecutor, or lawyer and has been exclusively in charge of legal affairs at courts, prosecutors’ offices, the Ministry of Justice, the Ministry of Government Legislation, the National Assembly Secretariat, or the National Court Administration for more than 20 years;
4. A person who held the position of assistant professor of law or higher at an accredited college or university for more than 20 years.

(2) For a person who has held two or more positions descried in paragraph (1), the sum of the years served in the different positions shall be applied.

Article 4 (Appointment of Members)

(1) The Constitutional Committee shall consist of nine members appointed by the President.

(2) Among the members referred to in paragraph (1), three shall be elected by the National Assembly, and three shall be nominated by the Chief Justice of the Supreme Court.

(3) Where the term of office of a member expires or a member vacates their position during the term of office, the President shall appoint a successor within 30 days from the date of expiration or vacancy. However, if the term of a member elected by the National Assembly expires or vacancy occurs during the dissolution or adjournment of the National Assembly, the National Assembly shall elect a successor and notify the President within 30 days of the formation of the next National Assembly, and the President shall appoint them within 30 days of receiving the notice.

Article 5 (Term of Office of Members)

The term of office of members shall be six years. However, the term of office of the successor of a member who vacated their position during the term of office shall be the remainder of the term of office of the predecessor.

Article 6 (Chairman of the Constitutional Committee)

(1) The Constitutional Committee shall have a chairman appointed by the President.

(2) The Chairman of the Constitutional Committee shall have supervisory power over all matters of the Constitutional Committee, direct and oversee the staffs of the Constitutional Committee, convene and preside over meetings of the Constitutional Committee, and represent the Constitutional Committee.

(3) The Chairman of the Constitutional Committee shall have the right to vote when the Constitutional Committee makes a decision.

Article 7 (Standing Members)

(1) The Constitutional Committee shall have one standing member appointed by the President from among the members.

(2) If the Chairman of the Constitutional Committee becomes unable to perform their duties due to any unavoidable cause, the standing member shall act on their behalf.

Article 8 (Guarantee of Members’ Status)

No member shall be removed from office against their will unless they fall under any of the following cases:

1. Where they join a political party or participate in politics;
2. Where an impeachment decision is rendered against them;
3. Where they are sentenced to imprisonment without labor or a heavier punishment.

Article 9 (Quorum)

The Constitutional Committee shall review a case by and with the attendance of seven or more members, and when making a decision shall require the concurrence of a majority of the members present; provided that a vote of six or more members is required for a decision on the unconstitutionality of a statute, a decision on impeachment, and a decision on the dissolution of a political party.

Article 10 (Treatment of Members of the Constitutional Committee)

(1) Members who are not standing members shall be held in an honorary position. However, compensation for daily wages, travel expenses, and other actual expenses may be received as prescribed by Presidential Decree.

(2) Standing members shall be public officials in special civil service, and their treatment and remuneration shall follow the practices for Supreme Court Justices.

Article 11 (Secretariat of the Constitutional Committee)

(1) The Constitutional Committee shall have a Secretariat.

(2) The Secretariat shall have a Secretary General and other necessary officials.

(3) The Secretary General shall be appointed as a public official in general service, and, under the supervision of the Chairman of the Constitutional Committee, manages all matters of the Secretariat and directs and oversees the staffs of the Constitutional Committee.

(4) The President, on the request of the Chairman, may designate other State agencies to conduct the affairs of the Secretariat, in whole or in part, on its behalf, or commission them to handle its affairs, and public officials belonging to other State agencies may concurrently serve as public officials in the Secretariat.

(5) The heads of other State agencies who act on behalf of the Secretariat, or are commissioned to handle the affairs of the Secretariat, under paragraph (4) shall handle affairs related to the Secretariat under order of the Chairman.

(6) The organization of the Secretariat, scope of duties, types, quota, appointment, dismissal, and remuneration of public officials assigned to the Secretariat, the commissioning of and delegation to other State agencies the affairs of the Secretariat under paragraph (4), and concurrent service of public officials in the Secretariat and other State agencies shall be prescribed by. Presidential Decree.

Chapter II Judgement on the Constitutionality of Statutes

Article 12 (Request for Judgement on Constitutionality of Statutes)

(1) If the constitutionality of a statute is a precondition of the judgement of a case, the court which takes charge of the case (including the military court; hereinafter the same shall apply) shall request judgement on the constitutionality of the statute to the Constitutional Committee.

(2) When a judge or a party to a lawsuit have an objection to the decision under paragraph (1), they may file an appeal.

Article 13 (Suspension of Proceedings)

(1) When a court requests judgement on the constitutionality of a statute to the Constitutional Committee, the proceedings in the original case shall be suspended until the Constitutional Committee makes a decision on the constitutionality of the statute.

(2) Where the Constitutional Committee accepts a request under paragraph (1), the Supreme Court shall suspend the proceedings of the court at each level in which the relevant statute is applied.

(3) The period in which a proceeding is suspended under the main clause of paragraphs (1) and (2) shall not be included in calculating the detention period as prescribed in Article 92(1) of the Criminal Procedure Act and Article 132(1) of the Military Court Act and the period of judgment under Article 184 of the Civil Procedure Act.

Article 14 (Matters to Be Stated in Written Request)

When a court requests judgement on the constitutionality of a statute to the Constitutional Committee, the court’s written request shall include the following matters:

1. Information on the requesting court;
2. Information on the case and the parties;
3. The statute or any provision of the statute which is interpreted as unconstitutional;
4. Reasons for which the statute is interpreted as unconstitutional; and
5. Other necessary matters.

Article 15 (Opinion of the Supreme Court to be Attached)

(1) When a court (including the Supreme Court) sends a written request to the Constitutional Committee under Article 14, it shall be sent through the Supreme Court.

(2) When the Supreme Court receives the written request under paragraph (1), it shall attach its written opinion on the issue of whether or not a statute is constitutional and send it to the Constitutional Committee.

(3) When the Conference of Supreme Court Justices deems a request on the judgement of the constitutionality of a statute, it may decide against sending it to the Constitutional Committee. The same shall apply when the Supreme Court shall make the request.

(4) When the Supreme Court makes a decision under paragraph (3), it shall notify the court which made the original request without delay.

Article 16 (Decision of Unconstitutionality)

When the Constitutional Committee decides on the constitutionality of a statute, the decision shall be made only for the statute or a provision of the statute for which a review is requested: Provided, that if the Committee finds that a decision of unconstitutionality on a provision would render the entire statute unenforceable, it may decide the statute unconstitutional as a whole.

Article 17 (Service of Written Opinion)

The Constitutional Committee shall serve an authentic copy of the written decision on the requesting court. In this case, if the requesting court is not the Supreme Court, it shall be served through the Supreme Court.

Article 18 (Effect of Decision of Unconstitutionality)

(1) Any statute or provision thereof decided as unconstitutional shall lose its effect from date on which the decision is made. However, any statute or provision thereof relating to criminal punishment shall lose its effect retroactively.

(2) Any decision that a statute is unconstitutional shall bind the courts, other state agencies, and local governments.

Chapter III Judgement on Impeachment

Article 19 (Impeachment Prosecutor)

In case of impeachment, the Chairman and Secretary of the Legislation and Justice Committee of the National Assembly shall be the impeachment prosecutors.

Article 20 (Duties of Impeachment Prosecutors)

(1) Impeachment prosecutors shall perform their duties by consensus, and the Chief Impeachment Prosecutor, who shall be the Chairman of the Legislation and Justice Committee, shall represent the prosecution and conduct the prosecution in the impeachment.

(2) When the Chief Impeachment Prosecutor becomes unable to perform their duties due to any unavoidable cause, the member of the prosecution designated by them shall act on their behalf.

Article 21 (Prosecution of Impeachment)

(1) The Chief Impeachment Prosecutors shall request judgement by presenting to the Constitutional Committee an authentic copy of the written impeachment resolution.

(2) The Chief Impeachment Prosecutor shall attach evidence and other information relevant to the impeachment to the resolution referred to in paragraph (1).

Article 22 (Appointment of Attorney)

(1) A person impeached under Article 21 may appoint an attorney at any time.

(2) The provisions of statutes and subordinate legislation on criminal proceedings shall apply mutatis mutandis to the defense under paragraph (1).

Article 23 (Service of Impeachment Resolution)

The Constitutional Committee shall serve an authentic copy of the impeachment resolution on the person impeached without delay upon reaching a written request on the judgement of impeachment.

Article 24 (Examination of evidence)

(1) The Constitutional Committee may, on the request of the parties or ex officio, examine the necessary evidence and commission the courts or other relevant agencies to investigate the matter.

(2) The provisions of statutes and subordinate legislation on criminal proceedings shall apply mutatis mutandis to the examination and investigation of evidence by the Constitutional Committee.

Article 25 (Disposition on Investigation)

When necessary for an investigation other than examination of evidence under Article 24, the Constitutional Committee may take disposition to:

1. Request a person who holds evidence to submit it;
2. Inspect a place to discover facts or collect evidence;
3. Request the submission of report or relevant information to public offices or organizations equivalent thereto.

Article 26 (Examination of Person Impeached)

The Constitutional Committee may summon and examine the person impeached.

Article 27 (Impeachment Plea)

(1) Impeachment shall be judged on the basis of justice and equity by weighing the plea against the results of the examination of evidence.

(2) If a party fails to attend on the date for their appearance, a new date shall be fixed. However, if the person impeached fails to attend without a justified reason, the impeachment may be carried out without their attendance.

Article 28 (Suspension of Adjudication Proceedings)

Where a criminal proceeding is under way for the same cause as in the request for impeachment against the person impeached, the Constitutional Committee may suspend the adjudication proceedings.

Article 29 (Provisions Applicable Mutatis Mutandis)

The provisions of the Criminal Procedure Act shall apply mutatis mutandis to the exclusion, recusal, and self-disqualification of members and other staff involved in the impeachment, and to the cost of hearings, preparation of protocol, and procedures in the trial court. However, a party may not move to recuse two or more members for the same case.

Article 30 (Effect of Decision)

When the Constitutional Committee pronounces a decision of impeachment, the person impeached shall be removed from the relevant public office.

Article 31 (Reinstatement of Qualifications)

Any person who is removed from public office by the decision of impeachment shall not be a public official within the meaning of Article 99(1) of the Constitution until three years have passed from the date on which the decision is pronounced.

Article 32 (Dismissal of Impeachment)

If a person impeached has already been removed from the relevant public office before the pronouncement of the decision, the Constitutional Committee shall dismiss the impeachment.

Chapter IV Judgement on Dissolution of Political Party

Article 33 (Request for Judgement on Dissolution of Political Party)

(1) If the objectives of a political party are contrary to the basic order of democracy, the Government, upon a deliberation of the State Council, may request a judgement on dissolution of the political party to the Constitutional Committee.

(2) The provisions of the Civil Procedure Act relating to trials to which the State may be a party shall apply mutatis mutandis to proceedings under paragraph (1).

Article 34 (Matters to Be Stated in Written Request)

(1) The written request for judgement on dissolution of a political party shall include the following matters:

1. Information on political party requested to be dissolved; and
2. Reasons for the request.

(2) If there exists evidence to prove the reasons for the request, it shall be attached to the written request under paragraph (1).

Article 35 (Service of Decision of Dissolution)

When the Constitutional Committee makes a decision dissolving a political party, it shall serve a certified copy of the decision on the Government and the representative of the political party.

Article 36 (Effect of Dissolution)

When a decision ordering the dissolution of a political party is pronounced, the political party shall be dissolved.

Article 37 (Notification of Request)

When a judgement on dissolution of a political party is requested, a request is withdrawn, or a decision is pronounced, the Chairman of the Constitutional Committee shall notify the facts to the National Assembly and the National Election Commission.

Article 38 (Provision Applicable Mutatis Mutandis)

Article 9 of the Administrative Procedure Act and the Civil Procedure Act shall apply mutatis mutandis to the judgement on the dissolution of a political party. However, the provisions of Articles 135, 138, 139(1), 206, 259, and 261 of the Civil Procedure Act shall not apply. Chapter V Supplementary Provisions

Article 39 (Time Limit of Judgement)

The Constitutional Committee shall commence the hearing within 15 days of the receipt of the request on the judgement of constitutionality of a statute, judgement on impeachment, or judgement on dissolution of a political party, and shall pronounce a decision within 90 days.

Article 40 (Opening of Judgment to Public)

The hearing of judgement, and pronouncement of the decision, of the Constitutional Committee shall be open to the public. However, when there is a danger that such hearing may undermine national security or disturb public safety and order, or be harmful to public morals, hearings may not be open to the public by decision of the Constitutional Committee.

Article 41 (Nondisclosure)

Written reviews shall not be disclosed.

Article 42 (Res Judicata)

The Constitutional Committee shall not judge the same case a second time when a prior judgement has already been made.

Article 43 (Reasons for Judgement)

(1) The reasons for a decision shall be attached thereto.

(2) The reasons and evidence for removal of a public official shall be clearly specified in a decision of impeachment.

Article 44 (Written Decision)

(1) When the Constitutional Committee finishes the judgment, it shall prepare, and all members involved in the judgement shall sign and seal, a written decision.

(2) If the Chairman of the Constitutional Committee is unable to sign and seal the written decision, another member shall sign and seal it, and if a member other than the Chairman is unable to sign and seal it, the Chairman shall add the reason therefor and sign and seal it.

Article 45 (Publication of Judgement)

The final decision of the Constitutional Committee shall be published in the Official Gazette.

Article 46 (Opinion of Members)

Any member who participates in judgement shall express their opinion on the written decision.

Article 47 (Presiding Member)

(1) The Chairman of the Constitutional Committee shall become the chairman in the hearings.

(2) The revisions of Article 7(2) shall apply mutatis mutandis when the Chairman becomes unable to perform their duties due to any unavoidable cause.

(3) The presiding member shall maintain order in the chamber, direct the arguments, and arrange the verdict.

(4) The provisions of Articles 54(2) and 55 of the Court Organization Act shall apply mutatis mutandis to the presiding judge.

Article 48 (Opinion of the Government)

When the Constitutional Committee makes a decision on the constitutionality of a statute, the opinion of the Minister of Justice shall be heard prior to making a decision.

Article 49 (Provisions Applicable Mutatis Mutandis)

Except as otherwise provided in this Act, the provisions of the Civil Procedure Act shall apply mutatis mutandis to the procedure for judgement of the Constitutional Committee.

Article 50 (Enforcement)

Matters necessary for the enforcement of this Act shall be prescribed by Presidential Decree.

Chapter VI Penalty Provisions

Article 51 (Penalty Provisions)

Any of the following persons shall be punished by an imprisonment with labor for not more than one year or by a fine not exceeding 100,000 won:

1. A person who is summoned or commissioned as a witness, expert witness, interpreter or translator by the Constitutional Committee but fails to attend without any justifiable reason;
2. A person who is demanded or ordered to submit articles of evidence by the Constitutional Committee but fails to submit them without justifiable reason; or
3. A person who refuses, interferes with, or evades an investigation or examination of the Constitutional Committee without any justifiable reason.

ADDENDA <Act No. 2530, February 16, 1973>

Article 1 (Enforcement Date)

This Act shall enter into force on the date of promulgation.

Article 2 (Repealed Acts)

The Impeachment Court Act (Act No. 1683) shall hereby be repealed. In this case, it shall not affect the effect of adjudication already in force, or the cases pending in the court.

Source

• Constitutional Committee Act, Ministry of Government Legislation, Korean Law Information Center