Guide to the Procedure and Requirements for Constitutional Review of Statutes

Based on 42 consultation cases · Updated October 4, 2026 · Translated from the Korean original.

Constitutional review of statutes is a procedure in which a court refers a statute to the Constitutional Court for review when its constitutionality is in question in a case to which it applies. A party may apply to the court hearing the case for a referral, but the requirement that the issue be a prerequisite to the trial must be met, and filing an application alone does not result in a ruling that the statute is unconstitutional.

People involved → Party to the case → Court hearing the case → Constitutional Court → A statute’s constitutionality is questioned in a pending case → Is the challenged rule a statute? → Yes → Is it a prerequisite to deciding the case? → No → No referral under this procedure A court may assess a decree or regulation itself → Yes — Constitution Articles 107(1) and 111(1)(1) → Are there reasonable grounds to doubt its constitutionality? → Yes — Constitutional Court Act Article 41(1) → The court refers the statute The Constitutional Court decides constitutionality → No — Constitutional Court Act Article 41(1) → No referral This does not by itself prove the statute is constitutional → Check effects in light of the provision and case → A ruling’s effects depend on the provision and circumstances → Check whether the provision concerns punishment → A punishment provision held unconstitutional m…

Key points

Constitutional review of statutes is a system of ex post, concrete review of legal norms in which a court refers a statute to the Constitutional Court, which then decides whether it is unconstitutional, when the statute’s constitutionality is a prerequisite to a specific trial (Constitution of the Republic of Korea, Article 107(1) and Article 111(1)(1) (대한민국헌법 제107조 제1항, 제111조 제1항 제1호)).
A court may refer a matter on its own initiative or in response to a party’s application. A party applies to the court handling the case, and the court decides whether to refer the matter after considering whether the statute is a prerequisite to the trial and whether there are reasonable grounds to doubt its constitutionality (Constitutional Court Act, Article 41(1) (헌법재판소법 제41조 제1항); Case 2).
The requirement that an issue be a prerequisite to the trial is met when the statute applies to the case and its constitutionality affects the judgment’s order or the legal meaning of its content or effect (Case 7).
Even if a statute does not apply directly to the case, the requirement may be met if it is internally related to another applicable statute and affects the outcome of the case or the meaning of the applicable rule (Case 21).
The subject of constitutional review of statutes is statutes. Decrees and regulations are not subject to this form of review; the example explains that a court may itself determine whether they are unconstitutional (Case 7).
Denial of an application for referral does not necessarily mean that the court found the statute constitutional. The application may also be denied because the statute is not a prerequisite to the trial, and no appeal may be filed against a decision on whether to refer the matter (Constitutional Court Act, Article 41(4) (헌법재판소법 제41조 제4항); Cases 2 and 20).
The effects of a ruling of unconstitutionality and the possibility of a retrial must be considered in light of the provision at issue and the circumstances of the case. The example explains that if a statutory provision concerning punishment is held unconstitutional, it may lose effect retroactively, and a retrial may be possible in a related criminal case (Constitutional Court Act, Article 47(3) (헌법재판소법 제47조 제3항); Cases 13, 15, and 18).

Frequently asked questions

Q. Who can request constitutional review of a statute?

The parties do not directly petition the Constitutional Court for constitutional review of a statute; instead, the court hearing the case refers the matter to the Constitutional Court. A party may apply to the court where the case is pending for a referral, and the court may also refer the matter on its own initiative.

Q. When is the requirement that an issue be a prerequisite to the trial met?

The statute in question must apply to the case, and its constitutionality must affect the judgment’s order or the legal meaning of the judgment’s content or effect. If a party challenges a provision unrelated to the case, the requirement that the issue be a prerequisite to the trial may not be met.

Q. Can a statute that does not directly apply to the case also be reviewed?

Even if a statute does not apply directly, the requirement may be met if it is internally related to a relevant statute and its constitutionality could change the outcome of the case or the meaning of a directly applicable rule. The relationship between the case and the two rules must be examined in each instance.

Q. Can a presidential decree or regulation, rather than a statute, be challenged through constitutional review of statutes?

According to the example, the subject of constitutional review of statutes is statutes, not decrees or regulations. It explains that courts may themselves determine whether a decree or regulation is unconstitutional.

Q. If a court denies an application for referral, does that conclusively mean the statute is constitutional?

That cannot be concluded categorically. An application for referral may be denied not only because the court finds the statute constitutional, but also because the requirement that the issue be a prerequisite to the trial is not met. No appeal may be filed against a decision on whether to refer the matter for constitutional review.

Q. If a court denies an application for referral, can a person petition the Constitutional Court for review?

The example explains that if a court denies an application for referral, a person may seek review of the statute’s constitutionality by filing a constitutional complaint under Article 68(2) of the Constitutional Court Act (헌법재판소법 제68조 제2항). However, the requirements for that procedure, including the requirement that the issue be a prerequisite to the trial, must be met.

Q. What happens to the review if the statute is amended or the trial ends while the review is pending?

If the requirement that the issue be a prerequisite to the trial ceases to be met, for example because the statute is amended, the review may become inadmissible. However, the example explains that review may exceptionally still be necessary where the requirement was met at the time of referral and a constitutional interpretation is needed, such as to address the risk of repeated infringement of fundamental rights.

Q. If a provision is held unconstitutional, can an existing criminal judgment also be challenged again?

The example explains that if a statutory provision concerning punishment is held unconstitutional and loses effect, a retrial may be requested in a case in which the person was punished under that provision. However, the effect of the unconstitutionality ruling and the availability of a retrial must be assessed in light of the provision and the circumstances of the case.

Relevant laws

Constitution of the Republic of Korea, Article 37(2) (대한민국헌법 제37조 제2항)
Constitution of the Republic of Korea, Article 75 (대한민국헌법 제75조)
Constitution of the Republic of Korea, Article 107(1) (대한민국헌법 제107조 제1항)
Constitution of the Republic of Korea, Article 111(1)(1) (대한민국헌법 제111조 제1항 제1호)
Constitutional Court Act, Article 26(1) (헌법재판소법 제26조 제1항)
Constitutional Court Act, Article 41(1), (4), and (5) (헌법재판소법 제41조 제1항·제4항·제5항)
Constitutional Court Act, Article 47(3) (헌법재판소법 제47조 제3항)
Constitutional Court Act, Article 68(2) (헌법재판소법 제68조 제2항)
Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, Article 3 (소송촉진 등에 관한 특례법 제3조)
Illegal Checks Control Act, Article 2(2) (부정수표단속법 제2조 제2항)
Act on the Punishment of Acts of Arranging Sexual Traffic, Article 21(1) (성매매알선 등 행위의 처벌에 관한 법률 제21조 제1항)
Act on the Stamps Attached to Civil Litigation, etc., Article 1 (민사소송 등 인지법 제1조)
Act on Special Cases concerning the Stamping of Documents and the Provision of Deposits, Article 2 (인지첩부 및 공탁제공에 관한 특례법 제2조)
Juvenile Protection Act, Article 2(1) and (4), and Article 26(1) (청소년보호법 제2조 제1호·제4호, 제26조 제1항)
Assembly and Demonstration Act, Articles 10 and 23 (집회 및 시위에 관한 법률 제10조·제23조)

Watch out for

The Constitutional Court does not immediately review a statute merely because its constitutionality is in doubt. First, determine whether the statute is a prerequisite to a specific trial.
Do not assume solely from the fact that an application for referral was denied that the court found the statute constitutional.
If the statute is amended or the trial in question ends, the requirement that the issue be a prerequisite to the trial may cease to be met. Whether the exception described in the example applies must be determined separately.
The possibility of a retrial following a ruling of unconstitutionality does not apply uniformly to every case. In particular, check the requirements concerning the loss of effect of a penal provision and retrials, as described in the example.

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 제75조 · 12 past questions (Round 2, Round 3, Round 5, Round 6, Round 10, Round 11, Round 12, Round 13, Round 14)
대한민국헌법 제37조 · 10 past questions (Round 1, Round 4, Round 5, Round 6, Round 8, Round 9, Round 12)
대한민국헌법 제107조 · 4 past questions (Round 1, Round 8, Round 15)

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).