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General Information

The judiciary is separate from the executive and legislative branches in that it exercises judicial power. Article 101 of the Constitution provides that “the judicial powers shall be vested in the courts comprising of judges,” thereby granting the powers of the judiciary to the courts and allowing them to carry out the rule of law. Article 27 of the Constitution provides, “All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act. All citizens shall have the right to a speedy trial,” making it clear that it is a fundamental right of the people to have a fair trial by a court consisting of qualified judges.

Independence of the Judiciary

In order to ensure the courts to fully perform their duty as the Judiciary, Article 103 of the Constitution provides, “Judges shall rule independently according to their conscience and in conformity with the Constitution and laws” declaring the independence of the judicial power. The independence of the Judiciary is one of the pillars of the division of powers, which is the fundamental principle in democracy and the most organizational mark of a country ruled by rule of law. The independence of the Judiciary means the independence of the judge to make judgments in accordance with his/her conscience without any outside influence based on the Constitution and the law. The Judiciary is able to serve its role as the last resort that protects the fundamental rights of the people only when the independence of the judiciary is guaranteed.

Principle of public trials

To ensure that a fair trial and in order to protect the human rights of the parties to litigation, Article 109 of the Constitution provides that the deliberation and judgment be opened to the public. Particularly, the right to a public trial in criminal trials is a right guaranteed under the Constitution. Provided, however, if there is a concern that the trial deliberations could disrupt national security or good social order, or damages the good morals and customs the courts may order that the trial not be opened to the public.

The three –trial system

Korea’s trial system follows the tri-trial system. Of civil/criminal cases, single-judge cases are heard in the order of (1) single-judge at district court (branch); (2) panel of judges at district court (appellate division); and (3) the Supreme Court. Judge panel cases are heard in the order of (1) panel of judges at district court; (2) High court; (3) the Supreme Court. In the martial court, the order is: (1) common martial court; (2) High martial court; and (3) the Supreme Court.

Prior to March 1, 1998, administrative trials proceeded to the appellate court and then to the Supreme Court, and of the administrative trials, the part that deals with demand for cancellation of administrative measure had to undergo administrative adjudication prior to the filing of a lawsuit. However, since March 1, 1998, administrative courts were established making it into a three-trial system. So unless the law provides otherwise, lawsuits to cancel administrative actions could be resolved by the administrative litigation without having to undergo administrative hearing. On the other hand, with the establishment of the patent court on March 1, 1998, the appeals against the 심결 or decision of the patent tribunal became the exclusive jurisdiction of the patent court. And because the patent court’s decision is appealable to the Supreme Court, the two-trial system proceeding from the patent court to the Supreme Court has been adopted.

Copyright ⓒ 2012 Judicial Information for Foreigners and Immigrants. Court of Korea. All rights reserved.