Constitutional Complaint against Original Administrative Action case

10-1 KCCR 660, 91Hun-Ma98, etc., May 28, 1998

A. Background of the Case

In this case, the Constitutional Court dismissed a constitutional complaint against an administrative action that has been already upheld through judicial review in the ordinary courts.

Whether an original administrative action can be challenged on a constitutional complaint after it has been upheld in ordinary judicial review has been debated since the establishment of the Constitutional Court. Because Article 68 (1) excludes all ordinary courts' judgements from the jurisdiction of the constitutional complaint process, including the ones affirming administrative actions, the exclusion of the original administrative action from constitutional scrutiny will restrict the constitutional complaint process as a protective measure for basic rights. Of course, the Constitutional Court's independent scrutiny of the original administrative action may conflict with the judgment of the ordinary court that had affirmed that action.

The complainants challenged the imposition of transfer profit taxes in the ordinary courts but their appeals were rejected. Then, they brought constitutional complaints alleging that the imposition of transfer profit taxes was based on a unconstitutional regulation violative of the principle of statutory taxation.

B. Summary of the Decision

The Court dismissed the complaints on the ground that an administrative action already upheld by an ordinary court is not subject to a constitutional complaint process unless there are exceptional circumstances, in a plurality opinion of four justices. One justice concurred with the plurality but on a different ground. Three justices also concurred with the plurality on a yet another separate ground. Only one justice dissented. The plurality opinion follows:

In 96Hun-Ma172, 173 on December 24, 1997, the Court had extended exceptionally a constitutional complaint jurisdiction to a judgment of the Supreme Court that enforced a law or its particular interpretation previously invalidated by the Constitutional Court. In

that case, in striking down the nonconforming judgment, the Court also struck down the original administrative action that the Supreme Court's judgment affirmed.

However, the original administrative action was annulled there only because the judgment affirming that action was being annulled at the same time and the Court intended to obtain expedient and efficient relief to infringement of basic rights in such situation. When there is no judgement being annulled, the original administrative action should not be reviewed in the constitutional complaint process since the ordinary courts' review is already binding. Allowing such review will conflict with Article 107 (2) of the Constitution that granted to the Supreme Court the final authority on constitutional review of "executive orders, rules and regulations, administrative actions" when their validity forms the premise of a judicial proceeding. It also conflicts with Article 68 (1) of the Constitutional Court Act that excludes judgements from the jurisdiction of the constitutional complaint.

Justice Lee Young-mo concurred with the plurality on the following ground:

The 'judgement' exclusion of Article 68 (1) does not apply to those judgements that applied an unconstitutional law (which is broader than law declared unconstitutional). In this case, indeed, the statute upon which the Supreme Court validated the imposition of tax, i.e. Article 60 of the former Income Tax Act (revised by Act No. 3098 on December 5, 1978 and prior to revision on December 22, 1994 by Act No.4803) had been invalidated by the Constitutional Court. Therefore, the complainants could challenge the Supreme Court's judgment in this constitutional complaint. However, they did not and challenged only the original administrative action of imposition of the taxes, and the period of amending the complaint expired. Therefore, the complaint should be dismissed.

Justices Lee Jae-hwa, Koh Joong-suk and Han Dae-hyun concurred with the plurality on the following separate ground:

The 'judgment' exclusion of Article 68 (1) of the Constitutional Court Act, taken together with its 'exhaustion of prior remedies' proviso, should be interpreted as excluding not only judgements but also administrative actions reviewed by the judgments. Any constitutional review of the original administrative action will be equivalent to a concurrent review of the judgment affirming that action, resulting in conflict with Article 68 (1) of the Act.

Justice Cho Seung-hyung dissented:

In light of the reason behind the Article 111 (1) (ⅴ) delegation to the Constitutional Court Act of determination of the subject matter and scope of the constitutional complaint process and the legislative intent behind the proviso of Article 68 (1) of that Act, the provision cannot be construed to exclude original administrative actions. Even Article 107 (2) of the Constitution that grants the Supreme Court the ultimate authority of review on administrative regulations, rules, and actions, applies only to a situation where the question of their validity arises as the premise of an underlying trial. Outside such situation, a constitutional complaint against an administrative action directly violative of basic rights should be allowed. Indeed, the Constitutional Court has already established through precedents that Article 107 (2) should be construed to allow constitutional complaints against administrative regulations and rules if they directly violate basic rights. Administrative actions are listed in parallel to rules and regulations in the constitutional provision, and there is no reason to treat actions differently from rules and regulations.

Furthermore, the exclusion of original administrative actions does not follow directly from the 'judgment' exclusion. Article 75 (3), (4) and (5) of the Constitutional Court Act specifically authorizes the Constitutional Court, in invalidating in an exercise of governmental power, also to invalidate statutes or statutory provisions upon which that exercise of governmental power was based. In light of this framework of the Constitutional Court Act, the constitutional complaint process and an ordinary court's constitutional review seem to have different subject matters, which the plurality fails to see. A judgement affirming an administrative action does not bind upon the constitutional question, i.e. whether people's constitutional rights were infringed, which can be decided through a constitutional complaint process. In addition, Article 75 (1) of the Constitutional Court provides that "a decision to uphold a constitutional complaint shall bind upon all state agencies and local government entities." Therefore, the Constitutional Court's decision invalidating the administrative action would take precedence and bind upon an ordinary court's prior judgment affirming it.

C. Aftermath of the Decision

The decision, not paid media attention due, deals with an important procedural issue surrounding the subject matter of the constitutional complaint process. Some public law

scholars argued that the completion of ordinary judicial review should not preclude the Constitutional Court's own review of the administrative action, and that the possible conflict with the ordinary court's judgment is not problematic since a decision by the Constitutional Court binds not only on the administrative agency but also the ordinary court. They therefore found the Court's decision too passive.

Others pointed to the Court's own precedents that have already allowed constitutional complaints against rules and regulations, and found the Court's Article 107 (2) reasoning dubious. Rules and regulations may differ from administrative actions in some aspects. It may be harder to exempt a constitutional complaint against administrative action from the requirement of exhaustion of prior remedies than against the rules and regulations. However, there are exceptional circumstances where the Court will easily accept a complaint against an administrative action when other remedies against it have not been exhausted. The difference is not sufficient to justify the categorical ban on a constitutional complaint against administrative actions. The proponents of this view observe that it is more appropriate legislative policy in light of the intent behind introduction of the constitutional adjudication system to extend its jurisdiction of constitutional complaint process to ordinary courts' judgments by the revision of the Constitutional Court Act.

In the ensuing National Defense Tax Annulment case, 93Hun-Ma 150 (June 25, 1998) and other cases, the Constitutional Court has dismissed about ten complaints against original administrative actions.