Parts of Kim Young-ran could be revoked even before the law takes effect

The headquarters of the Korean Bar Association in Seoul.

Korean Bar Association seeking a Constitutional Court review of the anti-corruption law

With the Korean Bar Association planning to ask the Constitutional Court to review the Kim Young-ran Act, some sections of the law may be in danger of being revoked before the law even takes effect.

The association is taking issue with two provisions in the law. First, the law states that members of the press are included in the category of “public servants” to whom the law applies. Second, the law makes it illegal to not report the fact that one’s spouse has received gifts in money or kind.

Applying the law to members of the press, who are regarded as public servants despite any clear grounds for doing so, constitutes an infringement of the principle of equality compared with other occupations, the association argues, while forcing individuals to report that their spouses have received gifts could infringe the freedom of conscience.

It is still unclear whether a law that has yet to take effect is even eligible to be reviewed by the Constitutional Court. The current requirements for constitutional review are that the request must be made by a party whose basic rights are allegedly being infringed and that said infringement must in principle be caused by a law that is currently in force.

Since the Kim Young-ran Act does not apply to lawyers and since the law has not yet taken effect, there is reason to think that the law in principle does not qualify for constitutional review.

In regard to the requirement that a constitutional review must be requested by parties to whom the law applies, the court has said in a previous ruling that “third parties who merely have an indirect, de facto, or economic interest in the exercise of public power, as well as those who are automatically disadvantaged by the law in question, are not recognized as being parties to whom the law applies.”

However, the association can easily satisfy this requirement by recruiting a journalist or some other member of the press to stand as a claimant.

There is also court precedent about the second requirement. “For a law to qualify for a constitutional review, it must ordinarily be a valid law that is currently in effect. However, if a law has been promulgated and is already presenting a credible danger even though it has not yet taken effect, the court may grant on an exceptional basis that infringement is occurring and conduct a constitutional review,” the Constitutional Court said, stating its standard position.

“If the party concerned waits until a law takes effect to request a constitutional review, the infringement may already have happened, which could place that party in a difficult situation. There are examples of constitutional reviews taking place even before the law or enforcement decree took effect,” said a court staff member.

While the decisions of other courts only apply to the parties involved in the trial, the decisions of the Constitutional Court apply to everyone. If the court were to rule that including members of the press in the scope of the Kim Young-ran Act is unconstitutional, not only the journalists who filed the suit, but all members of the press, would be exempted from the provisions of the law.

　

By Lee Kyung-mi and Kim Seon-shik, staff reporters

　

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