Formulating the Korean Supreme Court's Stature and Roles: With a Focus on the Relationship between Legislation and Precedents

Abstract

This essay/judicial speech is a modified English translation of Korean Supreme Court justice Jae Hyung Kim’s presentation at the Conference of Chief Justices of Asia and the Pacific, which convened on September 19, 2017 in Tokyo, Japan. The relationship between legislation and case law is a highly important subject in the Korean Supreme Court’s jurisprudence. Such relationship is relevant to statutory interpretation. The outcome of statutory interpretation is usually contingent upon how the judges understand and construct statute, a creature of the legislative body. Judges may differ in their approaches to assessing the supremacy of statutory language or legislative will or whether to construe a statute contrary to its words in light of the overall purpose of that statue. In other words, the outcome of a judicial case may depend on whether the judge is willing to defer to the legislature, to plug certain perceived loopholes in a statute, or even to attempt purposive interpretation seemingly contradicting the statutory language. In this piece, I will review the roles and responsibilities of the Korean judiciary with a focus on the relationship between the legislature and courts. Towards this end, I will first discuss the Korean Supreme Court’s jurisprudence on statutory interpretation. Such introduction will be followed by a discussion on some of the key Court decisions on the relationship between the two branches of government.