Sang-Hyeon Jeon, Judicial Minimalism of the Constitutional Court, The Justice, Vol. 185 (2021), pp.5-37.
<Abstract>
The Constitutional Court has a tendency to decide a case as narrowly as possible. The Court prefers a narrow decision that settles the case at hand instead of providing general rules that could resolve cases in the future. The Court’s declarations of incompatibility(unconformity to constitution) are increasing in frequency. The incompatibility-decisions require the Legislative to amend the unconstitutional statutes. The Court’s preference for incompatibility-decisions to unconstitutionaldecisions suggests that the Court avoids correcting unconstitutional laws by itself. These tendencies of the Court can be examined with the concept of so-called judicial minimalism, which Cass Sunstein has proposed to explain characteristics of decisions of the U.S. Supreme Court in some cases. Judicial minimalism means the policy of the judiciary that the judicial decisions should be as narrow and shallow as possible, that the social controversies should be settled through democratic deliberations in Congress rather than by judicial reviews. The judicial minimalism of the Constitutional Court of Korea is problematic. The power of judicial review is vested on the Constitutional Court explicitly by the Constitution of Korea, and the Court has not only power but duty to protect and realize constitutional order through judicial review. The Court’s narrower decisions and incompatibility-decisions leave unconstitutional provisions of acts still effective. It may lead to weakening the supremacy of the constitution.
<Keywords>
Judicial minimalism, Judicial review, Concrete review, Minimization of constitutional review, Declaration of incompatibility
Sang-Hyeon Jeon, Judicial Minimalism of the Constitutional Court, The Justice, Vol. 185 (2021), pp.5-37.
<Abstract>
The Constitutional Court has a tendency to decide a case as narrowly as possible. The Court prefers a narrow decision that settles the case at hand instead of providing general rules that could resolve cases in the future. The Court’s declarations of incompatibility(unconformity to constitution) are increasing in frequency. The incompatibility-decisions require the Legislative to amend the unconstitutional statutes. The Court’s preference for incompatibility-decisions to unconstitutionaldecisions suggests that the Court avoids correcting unconstitutional laws by itself. These tendencies of the Court can be examined with the concept of so-called judicial minimalism, which Cass Sunstein has proposed to explain characteristics of decisions of the U.S. Supreme Court in some cases. Judicial minimalism means the policy of the judiciary that the judicial decisions should be as narrow and shallow as possible, that the social controversies should be settled through democratic deliberations in Congress rather than by judicial reviews. The judicial minimalism of the Constitutional Court of Korea is problematic. The power of judicial review is vested on the Constitutional Court explicitly by the Constitution of Korea, and the Court has not only power but duty to protect and realize constitutional order through judicial review. The Court’s narrower decisions and incompatibility-decisions leave unconstitutional provisions of acts still effective. It may lead to weakening the supremacy of the constitution.
<Keywords>
Judicial minimalism, Judicial review, Concrete review, Minimization of constitutional review, Declaration of incompatibility