Keum Tae-seop
금태섭
The author is a former member of the National Assembly of Korea and a lawyer
Which of the so-called three judicial reform bills is the worst? Many experts point to the offense of “distorting the law” as the most problematic. The law, intended to prevent judges or prosecutors from intentionally misapplying the law, is so vague in both content and scope that it is difficult to know in advance what actions would be punishable. It could also lead to a flood of complaints filed by those dissatisfied with rulings against judges and prosecutors. However, in the long term, this law is unlikely to deal a serious blow to Korea’s judicial order. That is because its unconstitutionality is too clear. It directly violates the principle of legality — the idea that there can be no crime or punishment without a law — which is taught on the first day of criminal law classes in law schools. If a judge or prosecutor were ever indicted under this provision, it would almost certainly be ruled unconstitutional. It may cause confusion, but it will not result in lasting regression.
The proposed constitutional complaint system is not much different. Criticism that it would effectively create a four-tier trial system and increase the cost and time required for dispute resolution is certainly valid. However, given the size and staffing of the Constitutional Court, it is highly unlikely that it would comprehensively review cases already finalized by the Supreme Court. There may be an initial surge of petitions, but over time it would likely settle without major disruption — like a storm in a teacup. It may, however, leave a dent in the pride of the Supreme Court, which has traditionally viewed itself as superior to the Constitutional Court.
An information notice on the amended Constitutional Court Act (petition for retrial) is displayed at the Civil Service Office of the Constitutional Court in Jongno-gu, central Seoul, on March 12, the first day of the promulgation of the three judicial reform laws that include provisions allowing constitutional complaints against final Supreme Court rulings. [NEWS1]
The measure most likely to produce serious side effects is the bill to increase the number of Supreme Court justices. Even those critical of the ruling party’s direction in judicial reform have not strongly opposed this proposal. On the surface, the justification — that increasing personnel at a Supreme Court handling more than 40,000 cases annually would speed up case processing — appears reasonable. Criticism has largely focused on the concern that the sitting president would be able to appoint too many new justices, potentially influencing court rulings.
However, expanding the number of justices carries far greater implications. It could weaken the judiciary — one of the three pillars of the separation of powers — by undermining the authority of the highest court. It may also hinder the protection of minorities and vulnerable groups in society. Here is why.
In principle, the Supreme Court adjudicates cases through its full bench. The full bench consists of 13 members — 12 justices excluding the court administrator and the chief justice, who presides over proceedings. Due to the heavy caseload, most cases are handled by smaller panels of four justices, but this is only an unavoidable exception. Cases involving changes to precedent, the constitutionality or legality of administrative regulations or important issues related to citizens’ rights must be deliberated by the full bench with all justices participating. For this reason, the number of justices is critically important. If the number is too large, meaningful discussion and consensus become impossible. This is why the U.S. Supreme Court maintains nine justices.
The Democratic Party’s bill would increase the number to 25 — exceeding the average student class size in Korea in 2025. A meeting of 13 members is fundamentally different from a meeting of 25. It becomes difficult even for each person to speak. With responsibility for decisions effectively halved, it becomes easier to advance irresponsible or outlandish arguments. Some justices may even seek to align their opinions with the preferences of the political leader who appointed them.
The section for dissenting opinions, traditionally a breeding ground for “great dissenters,” could become a platform for unqualified justices to push arbitrary views. The kind of extreme rhetoric often heard in the National Assembly or on the streets could begin appearing in Supreme Court rulings. Over time, the authority of the full bench could erode, and justices would be reduced to functioning in small panels, identifying minor flaws in lower court decisions as a third-instance court.
Every textbook on democracy emphasizes the separation of powers and judicial independence without exception. This is because courts, which do not need to worry about elections or public opinion, serve as the last line of defense for minorities and the vulnerable in the darkest times. In Korea, that role has been fulfilled by the Supreme Court’s full bench.
If the increase in justices is implemented as proposed and effectively hollow out the full bench, the consequences will inevitably emerge even when those currently in power become minorities. In a country that experienced authoritarian rule not long ago and has seen two presidents impeached in recent years, can the judiciary’s strength be weakened in this way?
Like all other sectors in Korea, the judiciary has both achievements and shortcomings. There have been unjust rulings and moments of deference to political power. But that does not justify hostility toward nor the weakening of the judiciary, which would undermine the foundation of democracy. When the achievements and failures of the Lee Jae Myung administration are evaluated a decade from now, the forced passage of the bill to increase Supreme Court justices is likely to be seen as one of its greatest failures.
It may not be easy, but one can only hope that this administration — which claims to value rationality and pragmatism — will show flexibility and reconsider.
This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
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