(13-1 KCCR 1218, 2000Hun-Ra1, June 28, 2001)

In this case, the Constitutional Court declared the competence dispute case closed upon the plaintiff's withdrawal after completion ofthe hearings but before the Court's pronouncement of its final decision, by applyingmutatis mutandis, the Civil Procedure Act on withdrawal of a case.

A. Background of the Case

Mr. A, who is a member of the ruling party and an executivesecretary of the House Steering Committee in the National Assembly,declared the opening of anad hocmeeting of the Steering Committee, placed a proposal for revision of the National Assembly Act onthe agenda, and declared that the proposal was adopted on behalf ofthe Chairman of the Steering Committee. Plaintiffs, who are membersof the National Assembly from the opposition party, requested an adjudication on competence dispute alleging that their rights to review and vote on the proposed revision of the Act had been violated, andrequested the Court to pronounce the declaration of the adoption ofthe proposed revision by Mr. A null and void. Plaintiffs' argumentswere based on the following grounds: that the Chairman of the Steering committee did not bestow proper authorities to Mr. A to declarethe opening of a committee meeting; that the proposal for revisionof the National Assembly Act was not properly adopted as the agendaof the meeting; and that the voting process to adopt the agenda wasnot in accordance with the required procedures prescribed in theNational Assembly Act.

The Court held two hearings on the case, completed deliberation of Justices after conclusion of the oral arguments, reached a verdict,and designated a date for pronouncement of its final decision. In themeanwhile, the legislature did not take further steps to revise theNational Assembly Act: It did not refer the proposal for the revision of the Act to the Legislation and Judiciary Committee or to the plenary session of the National Assembly. Furthermore, the ruling partyand the opposition party agreed to refer the proposal for revision backto the House Steering Committee for deliberation and to withdraw the request for a competence dispute adjudication. Following such agreement, plaintiffs withdrew their request for a competence dispute adjudication two days before the date designated for pronouncement of the Court's final decision on the matter.

B. Summary of the Decision

(1) Majority Opinion

The Constitutional Court declared the competence dispute caseclosed, on a majority vote of seven Justices, as follows:

Article 40(1) of the Constitutional Court Act provides that "except as otherwise provided in this Act, the provisions of the laws and regulations relating to the civil litigation shall applymutatis mutandisto the procedure for adjudication of the Constitutional Court." Becausethere is no provision in the Constitutional Court Act regulating withdrawal of requests for adjudication on a competence dispute or requiring agreement of the defendant, Article 239 of the Civil Procedure Act on withdrawal of a lawsuit appliesmutatis mutandisto the procedure for adjudication on a competence dispute.

Competence dispute does not serve a subjective function of providing relief to individuals whose rights are infringed, but it servesan objective function of upholding the constitutional order. Theinstant case where plaintiffs allege that their rights to review andvote on proposals for legislation are violated, deals with a very public issue concerned with the protection of the legislative authoritiesof lawmakers. However, individual lawmakers can decide whether toexercise the right to review and vote on legislation proposals, andindividual lawmakers whose right to review and vote on legislationproposals had been violated can decide whether to file a request forthe adjudication of a competence dispute. In other words, the legislators are entitled to the freedom to file a competence dispute adjudication. Based on these facts, it can be concluded that a NationalAssembly member should also be guaranteed the freedom to withdraw the request for a competence dispute adjudication on his ownwill and that the National Assembly member should not be deprivedof such freedom because of the public nature of the competencedispute adjudication. In the instant case, the competence dispute is closed by the plaintiffs' withdrawal of the request for adjudication.

(2) Dissenting Opinion

In the instant competence dispute case, plaintiffs withdrew theirrequest for constitutional adjudication after completion of a reviewof the facts, and further hearing was not needed. According to thecase records, the decision of the Court in the instant case clarifiescriteria and limits on details of proceedings that the National Assembly, especially the Standing Committees, has to abide by, and this hasimportant bearing in defending and maintaining the constitutional order. Therefore, Article 239 of the Civil Procedure Act concerning the closure of a judicial review

should not be appliedmutatis mutandisinthis case, even if plaintiffs withdrew their request for a competencedispute adjudication. Accordingly, the case is not closed, and theCourt should pronounce its final decision on the case.

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