On February 27, 2026, a partial amendment to the Constitutional Court Act, which allows the Constitutional Court to hear constitutional complaints against court judgments, passed the plenary session of the National Assembly.
Previously under the Constitutional Court Act, court judgements were excluded from the scope of constitutional complaints. The newly amended Constitutional Court Act provides that a final court judgment may be made the subject of a constitutional complaint where it is unconstitutional, such as where it infringes fundamental rights, or where there has been a procedural violation (the so‑called “court judgment complaint”).
Key details of the amendment are as follows:
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Constitutional Complaint against Court Judgements
The newly adopted Article 68(3) allows for the filing of a constitutional complaint against a final court judgement under certain conditions. Specifically, if the court’s judgement: (i) infringes upon fundamental rights by rendering a judgement contrary to the Constitutional Court’s previous decision; (ii) infringes upon fundamental rights by failing to observe due process prescribed by the Constitution and applicable laws; or (iii) manifestly infringes upon fundamental rights by violating the Constitution and applicable laws. The constitutional complaint must be filed within 30 days from the final court judgement.
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Preliminary Review of Constitutional Complaint
The amendment adds a new sub-section providing that if the designated judicial panel consisting of three Constitutional Court justices determines that “it is clear that the grounds for the constitutional complaint do not fall under Article 68(3)", then the complaint can be dismissed at the preliminary review stage. The preliminary review process will take place up to 30 days from the date of filing the complaint.
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Binding effects of Constitutional Court’s decisions
In the event the Constitutional Court determines that there has been an infringement of fundamental rights, the relevant decision of the court can be invalidated and the original court that issued the judgement will have to renew its previous judgement in line with the rationale of the Constitutional Court’s decision.
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New Provision on Preliminary Injunctions
The amendment makes it clear that if a constitutional complaint is filed against a court judgement, the Constitutional Court may decide, ex officio or upon the claimant’s request, to suspend the effectiveness of the relevant court judgement.
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This amendment will enter into force on the day of promulgation and will apply only to constitutional complaints filed thereafter.
Once the amendment enters into force, it will open a pathway for constitutional issues concerning a case to be litigated before the Constitutional Court, even after a court judgement has become final, representing a significant turning point in Korean litigation practice.
[Korean Version]
