Guide to Constitutional Complaints under Article 68(2) of the Constitutional Court Act (헌법재판소법 제68조 제2항)

Based on 103 consultation cases · Updated October 4, 2026 · Translated from the Korean original.

If you believe that a statutory provision applicable to your trial is contrary to the Constitution, you may consider applying to the court during the trial to refer the provision for constitutional review and, if the application is dismissed, filing a constitutional complaint with the Constitutional Court. The Constitutional Court reviews issues such as violations of fundamental rights and may find the statutory provision constitutional, unconstitutional, or incompatible with the Constitution.

People and courts involved → Person with a pending case → Court hearing the case → Constitutional Court → During a trial, an applicable law seems unconstitutional → Does the provision apply to this trial and matter to its decision? → Yes → Did you first apply to the trial court for constitutional referral? → No → A direct or guaranteed complaint is not established → Did the trial court dismiss the referral application? → After dismissal, you may consider a constitutional complaint → Check filing requirements → Confirm the applicable procedure and the law version for your case → Check the merits → Consider the rights at issue, legislative purpose, means used, and case circumstances → Check the possible decision → A decision of incompatibility may let the provision apply provisionally until amendment

Key points

If the constitutionality of a statutory provision applicable to a pending case is at issue, the cases describe first applying to the court hearing the case to refer the provision for constitutional review (Case 3).
Some cases involve considering a constitutional complaint after the court dismisses the application for referral. However, the requirements and procedures for filing must be met, so dismissal alone does not guarantee an outcome (Case 3).
The unconstitutionality of a statutory provision is not established merely by making that claim. The Constitutional Court considers the fundamental rights at issue—such as property rights, the right to equality, freedom of occupation, and the right to a trial—as well as the legislative purpose and the suitability of the means used (Cases 1, 9, and 15).
In areas where the legislature has discretion to make policy judgments, many cases have respected that discretion and found the statutory provisions constitutional (Cases 2, 16, and 18).
Conversely, some cases have found that a statutory provision violates the principle of proportionality and infringes freedom of contract, or constitutes discrimination without reasonable grounds (Cases 11 and 24).
Even if the Constitutional Court finds a provision unconstitutional, it may issue a decision of incompatibility with the Constitution instead of immediately depriving the provision of effect. In that event, the provision may continue to apply provisionally until the law is amended (Case 24).
Whether a provision is unconstitutional depends on the specific provision and the circumstances of the case. Even where property rights are restricted, the outcome may differ depending on how the public interest and the extent of the restriction are assessed (Cases 1, 21, and 22).
Some of the statutory provisions discussed in the cases were later deleted or amended. For a current case, you should check the content and version of the law applicable at the relevant time (Cases 11 and 19).

Frequently asked questions

Q. If I think a law is unconstitutional while my case is being heard, can I file a constitutional complaint right away?

The cases describe a procedure in which you first apply to the court hearing the case to refer the relevant statutory provision for constitutional review, and consider filing a constitutional complaint after the court dismisses the application. The specific requirements for applying depend on the law and procedure applicable to the case.

Q. If I apply to the court to refer a statute for constitutional review, will the case necessarily go to the Constitutional Court?

No. The cases proceed on the basis that the court may dismiss the application for referral. Nor is the final determination of whether the statutory provision is unconstitutional decided merely by filing the application.

Q. Can any statutory provision be challenged by a constitutional complaint?

The cases concern disputes over whether a statutory provision that is a prerequisite to the decision in a trial is unconstitutional. It is therefore important that the provision applies to the trial in question, rather than being unrelated to the case.

Q. Can a law be considered unconstitutional if it restricts property rights?

A restriction on property rights does not, by itself, make a law unconstitutional. The Constitutional Court has found provisions constitutional after considering factors such as the public-interest purpose and the degree of restriction, and has also found that certain provisions do not violate the principle of just compensation.

Q. If I feel that a law is unfair, can I claim that it violates the right to equality?

Whether the right to equality has been violated is determined by considering factors such as whether there is a difference between the groups being compared and whether there is a reasonable basis for the difference in treatment. For example, a provision that treated interest on retirement benefits differently for people acquitted on retrial and people who received a decision not to prosecute was found to discriminate without reasonable grounds.

Q. If I file a constitutional complaint, will the statutory provision necessarily be ruled unconstitutional?

No. The cases include many findings that provisions are constitutional, as well as findings that provisions violate freedom of contract or the principle of equality. The outcome depends on the purpose and content of the provision and the extent to which it restricts fundamental rights.

Q. Does a decision of incompatibility with the Constitution mean the same thing as a decision that a law is unconstitutional?

The cases describe a decision of incompatibility with the Constitution as a modified form of an unconstitutionality decision. If immediately invalidating a law could create a legal vacuum or confusion, the law may be allowed to apply provisionally until it is amended.

Q. If the Constitutional Court rules that a past law was unconstitutional, does that ruling apply to my current case?

The effect must be determined by reference to the specific decision and the circumstances of the case. The cases also raised separately the question of whether a decision applies to contracts entered into before the unconstitutionality decision, and some statutory provisions were deleted. You should therefore check the relevant effective date and version of the law.

Relevant laws

Constitutional Court Act, Article 68(2) (헌법재판소법 제68조 제2항)
Constitution, Article 23(3) (헌법 제23조 제3항)
Constitution, Article 27(3) (헌법 제27조 제3항)
Civil Act, Article 651(1) (provision before its deletion in 2016; Case 11) (민법 제651조 제1항)
Civil Execution Act, Articles 102 and 130 (민사집행법 제102조, 제130조)
Framework Act on National Taxes, Article 35(1)(iii) (국세기본법 제35조 제1항 제3호)
Private School Act, Article 28(1) (사립학교법 제28조 제1항)
Act on the Registration of Real Estate under Actual Titleholder's Name, Articles 11(1) and 12(1) (부동산 실권리자명의 등기에 관한 법률 제11조 제1항, 제12조 제1항)

Watch out for

First confirm whether the statutory provision actually applies to the trial and whether its constitutionality could affect the outcome of the case.
The constitutional and unconstitutional findings described in the cases concern the statutory provisions and circumstances of those particular cases; the outcome in another case cannot be assumed to be the same.
A decision of incompatibility with the Constitution may differ from a decision finding a law unconstitutional and immediately depriving it of effect. Check the terms of the decision and when it applies.
The cases do not set out all the specific filing deadlines or submission methods for each procedure. For an actual case, you should separately check the current requirements for the relevant procedure.

By the numbers

These provisions on the Korean bar exam

헌법재판소법 제68조 · 41 past questions (Round 1, Round 2, Round 3, Round 5, Round 6, Round 7, Round 8, Round 9, Round 10, Round 11, Round 12, Round 14, Round 15)
대한민국헌법 제23조 · 17 past questions (Round 1, Round 2, Round 3, Round 4, Round 5, Round 7, Round 8, Round 9, Round 11, Round 12, Round 13, Round 14, Round 15)
대한민국헌법 제27조 · 4 past questions (Round 5, Round 7, Round 8, Round 14)

Source: 변습 변호사시험 기출 데이터셋 (CC BY 4.0 · 공공누리 제1유형) · Practice on Byunsi

Added from public data; separate from the article text.

Source cases

This guide was compiled by AI from the following Korea Legal Aid Corporation consultation cases (in Korean).

This guide is general legal information about Korean law, not legal advice for your situation. For a specific case, consult a lawyer or the Korea Legal Aid Corporation (call 132 in Korea).