5.Compulsory Attorney Representation in Constitutional Complaint Procedure

[22-1(A) KCCR 524, 2008Hun-Ma439, March 25, 2010]

This case involves the issue of whether Article 24 (3) of the Constitutional Court Act, which mandates the retainment of attorney as a representative for the constitutional complaint procedure infringes on the right to trial and right to equality. The Constitutional Court held that the compulsory representation by attorney does not violate the Constitution, confirming the precedent decision.

Background of the Case

Complainant, who majored in law at Korean National Open University, filed a constitutional complaint to seek unconstitutionality of Article 148 (1) of the Public Official Election Act without designating an attorney at law. The complainant filed another constitutional compliant, presented in this case, on June 5, 2008, alleging that Article 25 (3) mandating the retainment of an attorney infringes on the right to equality of the complainant who is not licensed as an attorney at law; and it violates the right to trial, freedom of learning, and the right of self-determination and general freedom of action implied by the right to pursue happiness to mandate uniformly the appointment of attorneys against the complainant majoring in law.

Provisions at Issue

The issue is whether Article 25 (3) of the Constitutional Court Act (enacted by Act No. 4017 on August 5, 1988) infringes the constitutional basic rights of the complainant; and the provision at issue is as below:

Constitutional Court Act (enacted by Act No. 4017 on August 5, 1988)

Article 25 (Representative or Agent)

(3)In any proceeding, unless a natural person who is a party selects an attorney-at-law as an agent, he shall not request for an adjudication or pursue an adjudication: Provided, That this shall not apply in case where such party is an attorney-at-law.

Summary of the Decision

The Constitutional Court held that the instant provision does not violate the Constitution to mandate the representation by an attorney in constitutional complaint procedure, in an opinion of 7(constitutional) to 2 (unconstitutional) with the following reasons:

1. Court Opinion of Seven Justices

A. Principle against Excessive Restriction

The compulsory attorney representation provides the remedy for the infringement on the basic rights by deleting or reducing the risk Of failing to rescue the infringed basic rights in circumstances where the complainant has insufficient legal knowledge and does not fulfill procedural requirements of a constitutional proceedings or to present professional opinions and documents.

Attorneys improve the quality of the constitutional adjudication processes by discouraging cases that are likely to be dismissed by the court. Additionally, attorneys develop arguments and prepare documents in a more object manner, which contributes to the democratic operation of the Judiciary of the nation.

We note that, under the system of compulsory attorney representation, the Citizens should bear the financial burden to pay attorney fees and the limits to the right to trial because of the prohibition of self-representation. However, while these burdens and limits are related to limitations against the private interests of individuals, the representation by an attorney in constitutional adjudications are related to the contribution to the public interests of the nation. Comparing these interests, the public interests through the

compulsion of attorneys overweigh the limited private interests of individuals.

Public interests gained from compulsion of attorneys is greater than the limited private of interests of individuals, especially in constitutional complaint cases amongst different types of constitutional adjudications under the following considerations. The court-appointed attorney paid by the nation would be provided when a party is not financially capable to pay attorney fees or when the public interests demand (Article 70 of the Act); a party can present her own opinion and documents, exercising her right to trial, even she is represented by an attorney; and an attorney is designated to assist the exercise of the right to trial of the complainant in nature, not limiting the right to trial.

With these considerations, we can conclude that Article 25 (3) of the Act stipulating compulsory attorney representation is a reasonable provision for the public interests, confirming to the Constitution.

B. Principle of Equality

This provision mandates the complainants be licensed as an attorney, even if they majored in law in a college-level institution. And this obligation results in discrimination against people who do not possess a license to practice law. However, the legislature intends to protect the basic rights of the Citizens and enforce the social justice through the specialty, fairness and credibility of legal affairs by assigning legal affairs to attorneys who are equipped with professional legal knowledge and ethical refinement (See12-1 KCCR 508, 529, 98Hun-Ba95 etc., April 2, 2000). The public interests obtained from the representation by an attorney who is an expert in law would be remarkable because constitutional decisions significantly affect national agencies and the citizens.

Expensive attorney fees can be problematic; however, it can be supplemented by the court-appointed attorneys stipulated by Article 70 of the Act. In addition, it is unclear whether allowing exceptions to compulsory attorney representation would curtail attorney fees or improve the efficiency of court proceedings.

Therefore, it is legitimate to allow only attorneys to represent a case, or to file directly a complaint and present directly her opinion.

It is not a unreasonable discrimination, and hence the provision does not infringe on the right to equality of the complainant.

2. Dissenting Opinion of Two Justices

Constitutional complaint is the final procedure to remedy the infringements on the basic rights of the Citizens by the public authority and to protect and maintain the general constitutional orders. However, constitutional complaint proceedings, unlike other proceedings, adopt document-based review in principle, allows oral arguments when their necessities are admitted, and employssua sponteexaminations. In other words, strict prerequisite of compulsory attorney representation is not appropriate in consideration of the nature and character of the constitutional complaint procedure, and the legitimacy of purpose and the appropriateness of the means of the provision, which limits the right to trial, are doubtful.

Without having the strict prerequisite of compulsory attorney representation, it would be possible to mandate to retain an attorney in exceptional cases, considering the capability of the complainant and the character of the case; or to admit the representative qualification, regardless of attorney license, if the trial is not obviously interrupted.

Or, the possibility of the abuse of constitutional complaints may be prevented by other alternatives, such as the reinforcement of Council of Justices, activation of deposit, or grants for attorney fees; and the complainant may be protected by the correction request of filing or eclaircissement preparation order of Civil Procedure.

It would violate the principle of the least restrictiveness to mandate the strict prerequisite of uniform compulsory attorney representation, despite there are other alternatives which is less restrictive to the basic rights as stated above.

Besides, the current count-appointed attorney system does not contribute effectively to the protection of the basic rights of the Citizens; thereby it does not justify the compulsory attorney representation.

Therefore, the compulsory attorney representation violates the Constitution, not conforming to the nature of constitutional adjudications.