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Judicial reform must not become a trigger for judicial collapse

Published: 15 Dec. 2025, 00:04

Cha Jin-a

The author is a professor at Korea University Law School.

The Democratic Party’s (DP) proposal to create a Judicial Administration Commission is designed to abolish the existing Court Administration Office and transfer judicial administrative functions to an independent external body. Yet Article 101, Paragraph 1 of the Constitution states clearly that “judicial power shall be vested in courts composed of judges.” Judicial power is generally understood to include not only adjudication but also judicial administration. If the National Assembly, a legislative body, were limited strictly to lawmaking while its own internal administration such as committee structures, committee chair appointments and personnel management were handled by the executive branch, the arrangement would be considered plainly unacceptable.

Back Hye-ryun, chair of the Democratic Party’s Special Committee on Judicial Reform (right), explains details of proposed judicial reform measures during a press briefing at the National Assembly in Yeouido, Seoul, on Oct. 20. [YONHAP]

Judicial appointments and case assignment in particular have a direct bearing on trials themselves and must therefore be exercised with the utmost caution. Handing such authority to an external body would inevitably and gravely undermine judicial independence and the fairness of trials.

For this reason, the proposal to establish a Judicial Administration Commission cannot escape the conclusion that it is unconstitutional. Why, then, are the government and ruling party pushing ahead with such legislation? The reasons can be broadly grouped into three.

First is a lack of awareness, or disregard, of the constitutional problem. The idea of placing judicial administration outside the courts was first raised in 2017 by the advisory judicial subcommittee of the National Assembly’s constitutional revision panel, which proposed a judicial council modeled on systems in parts of Southern Europe such as France and Spain. That proposal, however, faced strong criticism for infringing upon judicial independence. Even so, because it envisaged explicitly amending the Constitution to include a judicial council, its constitutional infirmities were less severe than those posed by the current plan for a Judicial Administration Commission.

Second is a lack of respect for the judiciary and for the principle of judicial independence itself. Under the so-called theory of the superiority of elected power, the judiciary, as an appointed branch, is viewed as subordinate to the legislative and executive branches. The idea that courts should simply conduct trials within a structure determined by the legislature leads directly to unconstitutional conclusions.

Third, underlying all this is an apparent intention to weaken the judiciary and bring judicial administration under political control. Directly controlling adjudication may be difficult, but controlling the tools and levers that effectively shape judicial outcomes is another matter. In the end, this points toward an attempt to dominate all three branches of government and erode the principle of separation of powers.

Judicial administrative authority may seem modest compared to the power to decide cases. Yet if the DP, which already controls the legislative and executive branches, were to take hold of judicial administration as well, can judicial independence truly be preserved? Would judicial oversight of abuses of power still function properly?

The establishment of a Judicial Administration Commission could therefore become a trigger that collapses judicial authority and renders the separation of powers meaningless. Fear of this scenario explains why so many people strongly oppose the proposal.

Looking back, the DP has applied pressure on the judiciary from the early days of its return to power, with the intensity increasing in recent months. One representative measure is a bill to expand the number of Supreme Court justices by 12 at once. This would make it possible to overturn the Supreme Court’s en banc decision, reached by a 10–2 vote, to remand President Lee Jae Myung’s case on charges of making false statements for retrial. Beyond this, the party has put forward five major judicial reform tasks, including the introduction of a constitutional complaint system that would effectively demote the Supreme Court from its position as the nation's highest court.

Additional proposals have followed in rapid succession. These include the creation of a special tribunal dedicated to insurrection cases, the establishment of a new crime of “distortion of law” targeting judges and prosecutors, and amendments to expand the Corruption Investigation Office for High-ranking Officials’ jurisdiction to cover all crimes committed by judges and prosecutors. When the unconstitutionality of the proposed insurrection tribunal became clear, lawmakers even introduced a bill that would allow trials to continue without suspension in insurrection and foreign aggression cases, even if a court requested constitutional review of the underlying statute.

A view of the Supreme Court building in Seocho District, Seoul [YONHAP]

Some of these ideas, such as increasing the number of Supreme Court justices or introducing a constitutional complaint system, may be worthy of discussion in principle. The problem lies in their timing and method. Others, like the insurrection tribunal and the Judicial Administration Commission, are being pushed forward despite their manifest unconstitutionality.

If the banner of judicial reform is used to justify the effective dismantling of the judiciary, then Korea’s democracy and rule of law will inevitably be weakened as well. Would the public truly accept the collapse of achievements built over 38 years since democratization?

This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.