Judges Facing Constitutional Court Review? New ‘Jeonpan Sowon’ Law Explained

A new legal process took effect in South Korea on March 12, 2026, allowing the Constitutional Court to review final court rulings and overturn those with unconstitutional legal interpretations. This “trial remonstrance” system offers a path for individuals to challenge decisions they believe violate their basic rights. But unlike traditional court cases, the defendant in these proceedings isn’t an individual – it’s the court itself.

The petitioner in a trial remonstrance is someone whose constitutional rights they claim were infringed upon by a court decision. While it might be natural to assume the opposing party would be the defendant in a civil case or the prosecutor in a criminal case, the “respondent” in this new process is the court that issued the original ruling.

Because the Constitutional Court is examining the constitutionality of a court’s decision, it may need to seek clarification from the judge who presided over the case. This raises the question of whether those judges could be summoned to appear before the court.

While constitutional complaints generally rely on written submissions, the Constitutional Court can hold oral arguments if it deems them necessary. In such cases, it can summon parties, interested parties, and other relevant individuals to testify under oath, as outlined in Article 30, paragraphs 2 and 3 of the Constitutional Court Act.

Given that constitutional complaints are considered an ultimate and extraordinary remedy, it’s generally considered safer for a case to have gone through the Supreme Court before being filed. Most cases are likely to originate from Supreme Court rulings, potentially placing Supreme Court justices in the position of being summoned by the Constitutional Court.

The Constitutional Court is proceeding cautiously. One court official stated the court will “ensure that no opportunity for parties to state their opinions is missed.” Another Constitutional Court source added, “In constitutional complaints, it is common for a representative to attend on behalf of the parties, and an expert in the field to appear as a reference witness.” Whether the court will actually call judges to testify remains to be seen.

For now, it’s unclear who will represent the court’s position in these proceedings. While precedent is still being established, the Constitutional Court has indicated that the “actual respondent” is the judge or panel that made the original ruling. Still, the court will designate who will present the court’s case. The court also noted it may request written opinions from the Supreme Court in certain instances.

Judges have previously submitted opinions to the Constitutional Court, particularly in cases involving constitutional law review where the court has the power to request opinions.

However, judges reportedly view trial remonstrances differently. They are hesitant to be placed in the position of having to justify their rulings.

“Unlike having a higher court review and overturn a decision, this requires me to explain and defend my judgment – which judge would agree to that?” said one judge from the Seoul court.

Court leaders have also expressed concerns about how the judiciary should respond. During a meeting of court leaders on March 12, 2026, concerns were raised about the procedures for submitting case records and the follow-up procedures for overturned rulings. Participants warned that the lack of clarity in the Constitutional Court Act and the absence of accompanying legislation could lead to confusion. “The meaning of the Constitutional Court Act is unclear, and the lack of related legal revisions could cause chaos,” one leader stated.

The discussion also touched on the issue of submitting case records. Reports have surfaced expressing concern about the logistical challenge of transporting tens of thousands of pages of court documents to the Constitutional Court. One official from the court administration office pointed to the time and expense invested in building the court’s electronic litigation system, questioning whether the Constitutional Court could adequately manage the records. These concerns were not previously raised in the Supreme Court’s review of draft legislation.

However, some argue that the court’s reluctance to share records is counterproductive. Court proceedings are documented, with transcripts and audio recordings created. By proactively sharing case records, the court could potentially reduce the likelihood of judges being summoned to testify. The success of the new trial remonstrance system, and the manner in which it unfolds, now rests with the judiciary.