29. Inaction of the Speaker of National Assembly after the Constitutional Court's Declaratory Decision of Authority Infringement

[22-2(B) KCCR 320, 2009Hun-Ra12, November 25, 2010]

In this case, the Constitutional Court held that the plaintiffs' petition for competence dispute adjudications, where they, as members of the National Assembly, claim that their rights to review and vote on the bills concerned were infringed by the inaction of the National Assembly Speaker, herein the respondent, should be denied. The Court's holding was based on the ground that, despite of the Constitutional Court's prior declaratory decision of the respondent's infringement on the plaintiffs' rights to review and vote on the bills by announcing the passage of the bill concerned, that Court's prior affirmative decision in its binding force does not impose on the respondent such a particular duty to perform that requires him to remove the unconstitutionality or illegality of his infringement on the plaintiffs' right.

Background of the Case

On July 23, 2009, the plaintiffs, the members of 18th National Assembly who belong to Democratic Party, the Create Korea Party or the Democratic Labor Party, filed petitions like 2009 Hun-Ra8 with the Constitutional Court for competence dispute adjudication against the National Assembly Speaker, the respondent.

In its holding delivered on October 29, 2009, the Constitutional Court found that, by announcing of passage of the bills related in the 2nd main conference of 283th provisional session of the National Assembly convened at around 15:35 of July 22, 2009, the respondent infringed on the plaintiffs' rights to review and vote on the bills concerned. The Constitutional Court, however, denied the plaintiffs' request for the affirmation of the invalidity of the respondent's announcement of passage of the bills concerned.

Thereafter, on December 18, 2009, the plaintiffs, filed a petition for competence dispute adjudication with the Court, arguing that the respondent, by not performing any action, infringed again on their rights to review and vote on the bills related because the respondent has not taken any measures since the Court, like the second paragraph of its decision of 2009 Hun-Ra8 mentioned above, found that the respondent had infringed on the plaintiffs' rights to consider and vote on the respective bills related by his announcement of passage of such bills.

Subject Matter of Review

Whether the respondent infringes on the plaintiff's rights to consider and vote on the bills related when the respondent has not taken any steps to restore those plaintiffs' rights even after the Constitutional Court, in its decisions like 2009 Hun-Ra8 delivered on October 29, 2009, found that the respondent infringed those plaintiffs' rights by the announcement of passage of the bills related.

Summary of Decision

Because any opinion does not gain a majority vote, the Constitutional Court, in a vote of 4(dismissal): 1 (denial): 4(admission), denies all of the plaintiffs' claims based on the following reasons against the plaintiffs' assertion that the non-feasance of the respondent for the restoration of those infringed rights of plaintiffs even after the Constitutional Court's declaratory decision of respondent's infringement on the plaintiffs' rights to consider and vote on the bills concerned amounts to another repeated infringement on their same rights.

1. Majority Opinion (Denial)

A. Opinion(Dismissal) of Four Justices

The decision on competence dispute by the Constitutional Court shall bind all state agencies and local governments (Article 67 Section 1 of the Constitutional Court) and therefore the Court's affirmation decision of infringement on rights is deemed to have a binding force. However, that binding force is limited to impose on the infringing party a duty to respect that Court's decision and not to do the same conduct in the same circumstances in that party's future disposition. This means that an active duty to correct the prior disposition or to remove the consequences of that disposition is not required for the infringing party. The obligation to correct a prior disposition or a duty to remove the consequences of a prior disposition shall be imposed based upon a premise that the disposition itself is unconstitutional and illegal to be void by the Court's revocation or confirmation of invalidity of disposition.

The Constitutional Court Act does not grant the Constitutional Court a right to actively impose a duty on a respondent or a 3rd party, only requiring that the respondent to act in accordance with the Court's decision when the Court has rendered a decision on admitting the plaintiff's allegations in his or her request for adjudication against an inaction (the second part of Article 66 Section 2 of the Constitutional Court Act). Thus, there is not enough basis for the Court to consider that the Constitutional Court, in its decision on the existence or scope of the competence of an authority or right, can impose a duty of performance on a respondent or a 3rd party such as the National Assembly. Accordingly, apart from the question of the respondent's duty to restore which is required from the binding effect of the Court's direct revocation or confirmation of the invalidity of the respondent's disposition, it is difficult for the Court to find that an active duty to remove a unconstitutional and unlawful infringement on the right arises when the Court decides just on the existence or scope of the competence of an authority or right.

Consequently, so far as the Constitutional Court in its case laws including 2009 Hun-Ra 8 mentioned above only recognizes an infringement of right and does not declare either a revocation or a confirmation of the invalidity of the respondent's disposition, the

respondent's obligation to actively remove the unconstitutionality and illegality within the prior activity infringing the right of the plaintiffs does not arise. Thus, the plaintiffs' request in the instant case shall be dismissed.

B. Opinion(Denial) of One Justice

The decision on competence dispute by the Constitutional Court shall bind all state agencies and local governments (Article 67 Section 1 of the Constitutional Court Act) and the Court takes charge of delivering decisions on competence disputes between state organizations or government institutions. The Court also has a function to restrict on the government activities to be complied with the Constitution. For the foregoing reasons and the institutional purpose of the decision on competence dispute, the respondent, who is directly affected by the Constitutional Court's decision of the confirmation of infringement on the plaintiff's right because of the binding effect of the Court's, is deemed to be under a constitutional obligation to respect that decision and to remove the unconstitutional and illegal elements in his or her own activity.

In the instant case, the Constitutional Court's prior declaratory decision of infringement on the plaintiffs' rights in terms of procedural defect, in its binding effect, is inherently limited on its affirmation that the respondent's announcement of passage of the bills related unconstitutionally and unlawfully infringed on the plaintiffs' rights to consider and vote the bills concerned because a decision on competence dispute is primarily to consider the existence or scope of the plaintiff's competence in his or her authority or right, Consequently, it completely depends on the legislature's discretion how that unconstitutional and unlawful elements in its infringement should be removed. Thus, I have not concluded that the Constitutional Court, by making an additional decision of confirmation of invalidity or revocation of the respondent's announcement of passage of bills or illegality of ommission, would be able to attempt for itself to restore the plaintiffs' rights infringed in order to enforce and implement its own decision.

I found that, unlike typical decision of competence dispute, a special type of decision of competence dispute like the instance case, where there is a contention over the procedural defect in decision making in the course of with National Assembly or the Chairman of the National Assembly as the respondent is not deemed to fall under the scope of Article 66 Section 2 of the Constitutional Court Act. Thus, there must be a certain limitation on the binding effect of the Constitutional Court's decision of infringement on the right or the authority.

If the intention of this decision were to cancellation of the prior announcement of passage of the bills, as a way to realize the binding effect of 2009 Hun-Ra8, the decision cannot be justified since it goes beyond the limit of binding force. On the other hands, if the plaintiffs are just seeking for the Court to make a confirmation that the respondent has a duty to remove the unconstitutional and illegal elements in his announcement of passage of respective bills concerned, it was unnecessary for the plaintiffs to file this instant case again with the Court because that confirmation of respondent's duty has already made because the Court's prior decision on the competence dispute is binding. I, therefore, conclude that the plaintiffs' petition of the instant case shall be denied due to lack of merits.

2. Dissenting Opinion

A. Opinion(Admission) of Three Justices

Once the Constitutional Court finds that the rights of some members of the National Assembly to review and vote a bill were infringed due to an unlawful legislative process of the National Assembly, the National Assembly and its members become to be responsible to remove the unlawful elements in that legislative process and restore those infringed rights of some members. The Court's decision of competence dispute is such an affirmation decision that it does not have any formative effect to directly revoke the respondent's announcement of passage of the bills related. In our view, a decision of the Constitutional Court, however, is binding so far as it finds that

the rights of the National Assembly members are infringed on and the binding effect of that Court's decision means that the unconstitutional and unlawful elements discovered in the Court's decision must be removed in order to restore those members' rights infringed.

Because the Constitutional Court's decisions of competence dispute including 2009 Hun-Ra8 are binding, the National Assembly in this instant case must be obliged to correct the unlawfulness resulted in by the legislative process for its members to review and vote the respective bills related. The National Assembly, consequently, has to lawfully reconsider and revote those respective bills related. For these, the National Assembly itself, if necessary, either can revoke or confirm the invalidity of its own announcement of passage of those respective bills or may bring up and lawfully consider the bills to repeal or revise the Press Law and the Broadcast Act. In addition, the National Assembly could ratify the prior process of consideration and vote or the prior announcement of passage of bills related if the outcome of an lawful re-consideration and re-vote allows.

Although the Constitutional decisions such as 2009 Hun-Ra8 have denied the plaintiffs' claims for the Court's confirmation of invalidity of the respondent's announcement of passage of bills for the Press Law and the Broadcast Act, those decisions neither invalidate nor exclude the binding effect of the Court's confirmation decision of infringement on the right. In our view, the Court's denial of the plaintiffs' claim for invalidation of the respondent's announcement simply means that the Court deems it is desirable to make the legislature to determine in its discretion the details of the process and the plan to correct the prior unlawful process of consideration and vote.

Accordingly, it is a disregard for the binding effect of the Constitutional Court's decision maintaining the existing infringement on the plaintiffs' rights that the National Assembly has not take any action to conduct its duty to address the unlawful activities occurred in the process of consideration and vote the bills related and restore the plaintiffs' right to consider and vote infringed. For the forgoing

reasons, we conclude that the plaintiffs' allegations in their petition should be admitted.

B. Opinion(Admission) of One Justices

In my view, the binding effect of the Constitutional Court's decisions of the infringement on the plaintiff's right prescribed under Article 66 Section 1 of the Constitutional Court Act shall be interpreted in a way that all the state institutions or the local governments are prohibited from making a consideration or conducting any activity against the Court's decisions. Furthermore, we should interpret that binding effect of the Court decisions in a way that all the state institutions or the local government must have those decisions to be bases on their considerations and measures taken. In the instant case, the Constitutional Court's decision of competence dispute should be deemed to mean not only that the respondent should not repeat the same unlawful activities which the Court found to be unconstitutional and unlawful but also that a duty to remove the unconstitutional and unlawful elements caused by himself or herself must be imposed on the respondent.

The Constitutional Court is required to decide whether a right is infringed or not under the Article 66 Section 1 of the Constitutional Court Act. On the contrary, the decisions of revocation or confirmation of invalidity of disposition under the first part of the same Article Section 2 of the Constitutional Court Act may be additionally declared either at the Court's discretion or in response to the party's request. This means that, in principle, the Constitutional Court's role in its decisions on competence dispute is only to determine whether the respondent's disposition at issue is unconstitutional and unlawful or not and therefore the Court should refrain from making a formative decision like the ones of revocation or confirmation of invalidity of disposition.

Meanwhile, the National Assembly is a decision-making state organization composed of members elected directly by the vote of the people. The members of the National Assembly are functioning as the

representatives of people who represent the interests of the people of the entire country and the National Assembly has a wide latitude of legislative-formative power. The National Assembly also is a branch of government which may inspect or investigate state affairs so that its independence and autonomy should be protected by the Constitution (Article 64 Section 1 of the Constitution). Thus, in competence dispute cases arisen out of legislation between the members of the National Assembly the Constitutional Court, the Constitutional Court must limit itself to restore Constitutional order by requiring the respondent himself to remove unconstitutionality through the binding force. In doing so, the Constitutional Court must limit itself to adjudicate on whether the respondent's disposition or inaction is against the Constitution or the statue. Accordingly, it is undesirable that the Constitutional Court goes beyond its limit and actively gets involved in political process of state, by making a formative decision on the effect of disposition through its decision of revocation or affirmation of invalidity of that disposition under the first part of Article 66 Section 2 of the Constitutional Court Act.

However, once the Court, like the second paragraph of holding in the 2009 Hun-Ra8 case, has found that the respondent has infringed on the plaintiffs rights to review and vote on the bills concerned, due to the binding effect of the Court's affirmation decision of that infringement, the respondent must bear a legal duty of performance to remove the unconstitutional and unlawful elements of his disposition which infringed the plaintiffs' rights notwithstanding the fourth paragraph of holding where the Court denied the plaintiffs' claim for the Court's confirmation of invalidity of the respondent's announcement of passage of bills related. On the other hands, it must be the National Assembly or the respondent that has its or his own discretion in choosing the way to take the measures to remove such unconstitutional and unlawful elements. In the instant case, however, the respondent has not carried his legal obligation of performance occurred by the binding effect of the second paragraph of the Court's holding and thereafter he even actively deny that obligation, arguing that he has no legal duty to perform any more by reason of the Court's denial in the fourth paragraph of its holding explained above.

For the foregoing reasons, I conclude that the Court should admit the plaintiffs' allegations in their petition.