KOR
1. Can the president's refusal of an appointment be seen as a violation of the Constitution?
2. Can the lack of "prior agreement" between the president and the chief justice be considered a procedural defect in the nomination process?
3. Can the president restrict the scope of nomination by requiring the chief justice to re-nominate a Supreme Court justice candidate only from among the candidates previously recommended by the Supreme Court Justice Candidate Recommendation Committee? Or can the National Assembly amend relevant legislation for this purpose?
Let us examine these three issues in order and analyze the implications of the current refusal to appoint a Supreme Court justice.
■ Can the President Refuse to Appoint a Supreme Court Justice?
Both legal theories exist: one arguing that an appointment cannot be refused, and another arguing that it can be refused. Personally, however, the theory that the president can refuse an appointment (the substantive appointment power theory) appears more logical.
Let us look at the nature of the president's appointment power regarding Supreme Court justices. The appointment procedure for Supreme Court justices is set forth in Article 104, Paragraph 2 of the Constitution.
Article 104, Paragraph 2 of the Constitution: Justices of the Supreme Court shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court and with the consent of the National Assembly.
The Constitution separately prescribes the chief justice's "power to recommend" (nominate), the National Assembly's "power of consent," and the president's "power of appointment." The core question is whether the president's "power of appointment" includes the authority to refuse an appointment.
The two main theories addressing this are the formal appointment power theory and the substantive appointment power theory. Proponents of the formal appointment power theory view that the president's power to appoint Supreme Court justices does not include the authority to reject an appointment. This means the president is obligated to appoint the individual recommended by the chief justice and consented to by the National Assembly. Conversely, proponents of the substantive appointment power theory view that the power of appointment encompasses the authority to reject an appointment. This implies the president can substantively decide whether or not to make the appointment. If the interpretation holding the appointment power as a mere formal authority is correct, President Lee Jae-myung's refusal to appoint constitutes a "constitutional violation," as claimed by the opposition party. If the substantive appointment power interpretation is correct, then regardless of the validity of the reasons cited by the presidential office, the act of refusing to appoint a Supreme Court justice cannot be defined as a constitutional violation.
Those who support the formal appointment power interpretation argue that the president's power to appoint Supreme Court justices holds the same status as the power to appoint Constitutional Court justices. Regarding the president's power to appoint Constitutional Court justices being formal, there is an established Constitutional Court precedent. In February 2025, when ruling on a case in which then-Acting President Choi Sang-mok withheld the appointment of then-Constitutional Court justice nominee Ma Eun-hyuk, the Constitutional Court determined that the president's appointment power over Constitutional Court justice candidates elected by the National Assembly is "formal." It stated that the president has an obligation to appoint the person elected by the National Assembly as a Constitutional Court justice. Proponents of the formal appointment power theory interpret that, in the same way, the president is obligated to appoint the person recommended by the chief justice as a Supreme Court justice.
However, proponents of the substantive appointment power theory argue that the power to appoint Constitutional Court justices and the power to appoint Supreme Court justices are different. They point to differences in the terminology used in the Constitution. For Constitutional Court justices, it is stipulated that the president appoints persons "elected" by the National Assembly or "nominated" by the chief justice (Article 111, Paragraph 3 of the Constitution). For Supreme Court justices, however, it is stipulated that the president appoints candidates "recommended" by the chief justice following the consent of the National Assembly. Their stance is that because the chief justice's "nomination" of a Constitutional Court justice and the chief justice's "recommendation" of a Supreme Court justice have different meanings, no mandatory duty to appoint arises regarding a Supreme Court justice recommendation.
They believe the chief justice's power to "recommend" Supreme Court justices should instead be compared with the prime minister's power to "recommend" State Council members (Article 87, Paragraph 1 of the Constitution). Regarding the prime minister's recommendation of State Council members, it is generally interpreted that the president can refuse the appointment, meaning the president holds substantive appointment power. Their position is that the same interpretation should apply to the chief justice's "recommendation" of Supreme Court justices.
Another piece of evidence presented by the substantive appointment power theory is the history of constitutional amendments. The constitutions of the Second and Third Republics explicitly contained provisions stipulating that when a recommending authority proposes a Supreme Court justice, the president must make the appointment (see constitutional text citations below). Under the Rhee Syngman administration, controversy erupted when the president rejected the appointment of a recommended chief justice; subsequently, the provision was introduced in the Second Republic Constitution to clarify that the president's power to appoint Supreme Court justices was a formal authority.
However, in the Yushin Constitution amended in 1972, the provision defining the president's power to appoint Supreme Court justices as a formal authority was deleted. The clause mandating that the president must appoint the recommended individual disappeared (see cited provisions below). Through the Fifth Republic Constitution and up to the current Constitution, the constitutional provisions on Supreme Court justice appointment procedures were modified slightly, but the clause defining the president's appointment power as a formal one has never been restored.
Proponents of the substantive appointment power theory see this constitutional history as reflecting the intent of the constituent power. Deleting the clause that defined the president's appointment power over Supreme Court justices as formal means it was intended from then on not to be interpreted as a mere formality. Therefore, their position is that the relevant provisions continuing into the current Constitution must be construed as granting the president substantive authority regarding Supreme Court justice appointments.
▶ Article 78 of the Second Republic Constitution: The Chief Justice of the Supreme Court and Supreme Court Justices shall be elected by an electoral college composed of persons qualified as judges, and shall be confirmed by the President. (Amended June 15, 1960)
▶ Article 99, Paragraph 2 of the Third Republic Constitution: Judges who are Supreme Court judges shall be recommended by the Chief Justice with the consent of the Judge Recommendation Council and appointed by the President. In this case, when there is a recommendation, the President shall appoint them. (Amended December 26, 1962)
▶ Article 103 of the Yushin Constitution:
① A judge who is the Chief Justice of the Supreme Court shall be appointed by the President with the consent of the National Assembly.
② Judges other than the Chief Justice of the Supreme Court shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court. (Amended December 27, 1972)
▶ Article 104, Paragraph 2 of the Current Constitution: Justices of the Supreme Court shall be appointed by the President upon the recommendation of the Chief Justice of the Supreme Court and with the consent of the National Assembly. (Amended October 29, 1987)
Personally, interpreting the president's appointment power as a substantive power that includes the authority to refuse an appointment seems more reasonable. In light of the facts that the president's power to appoint Constitutional Court justices pertains to those "elected" or "nominated," whereas the power over Supreme Court justices pertains to those "recommended"; that it is generally accepted that the president can refuse the appointment of State Council members "recommended" by the prime minister; and that past constitutional provisions defining the appointment power as formal were deliberately deleted after the 1972 amendment, it is logical to interpret that the president holds the substantive power to reject Supreme Court justice appointments. Under this interpretation, the president's refusal to appoint a Supreme Court justice cannot be defined as a constitutional violation.
Furthermore, it should also be noted that the Supreme Court has expressed support for this interpretation. Roh Kyung-pil, Minister of National Court Administration, made remarks indicating that the president holds the authority to reject appointments during a session of the National Assembly's Legislation and Judiciary Committee on August 19. (Minister Roh, an active Supreme Court justice, is also known as an expert in constitutional and administrative law.) Given this, speculation by some that Chief Justice Cho Hee-dae might file an adjudication on competence dispute against President Lee Jae-myung's refusal to appoint can be assessed as having low feasibility.
○ Lawmaker Park Gyeon-taek: Then, in the end, is it the recommending authority who makes the appointment?
● Minister of National Court Administration Roh Kyung-pil: That is not the case.
○ Lawmaker Park Gyeon-taek: Then why is an appointing authority necessary?
● Minister of National Court Administration Roh Kyung-pil: In any case, I believe the appointing authority has the power to refuse the appointment.
(Omitted)
○ Lawmaker Park Gyeon-taek: What I mean is, why was the appointment authority given to the president?
● Minister of National Court Administration Roh Kyung-pil: To decide whether to appoint or not.
○ Lawmaker Park Gyeon-taek: Is that how it is?
● Minister of National Court Administration Roh Kyung-pil: Yes.
- From the records of the National Assembly Legislation and Judiciary Committee on August 19, 2026 -
■ Can a Recommendation Without "Prior Agreement" Be Regarded as a Procedural Defect?
However, aside from the president possessing the authority to reject a Supreme Court justice appointment, the grounds for refusal announced by Senior Presidential Spokesperson Kang Yu-jung when demanding a "re-recommendation" are invalid. This is because the primary justification presented for the refusal was a lack of "procedural completeness" resulting from the failure of the president and the chief justice to reach a "prior agreement." Yet, because "prior agreement" cannot be a procedural prerequisite for the chief justice's exercise of the recommendation power, the absence of prior agreement cannot be viewed as a procedural defect.
The Constitution defines the chief justice's power of recommendation and the president's power of appointment as separate and independent powers. Just as the president's appointment power is not a formal power subordinate to the chief justice's recommendation power, the chief justice's recommendation power is likewise not subordinate to the president's appointment power. (In fact, prior to 1972, the Constitution defined the president's appointment power as subordinate to the recommendation power.) Therefore, just as the president can refuse an appointment without being bound by the chief justice's recommendation, the chief justice can also recommend Supreme Court justice candidates without being subordinate to the president's appointment power.
Of course, "consultation" between the president and the chief justice is necessary as a matter of constitutional convention. However, such necessity does not make "prior agreement" between the president and the chief justice a statutory procedural requirement. Nowhere in the Constitution or the law is prior agreement with the president defined as a procedural condition for exercising the recommendation power. Furthermore, if the chief justice were only allowed to exercise the recommendation power upon reaching a "prior agreement" with the appointing president, then the president would likewise only be able to request appointment consent from the National Assembly upon reaching a "prior agreement" with the legislature. Naturally, the president can request appointment consent from the National Assembly without prior agreement. Therefore, the presidential office's claim that there is a lack of "procedural completeness" due to the absence of "prior agreement" is unfounded.
(The presidential office's citing of a lack of "procedural completeness" due to the absence of "prior agreement" appears to stem from conscious awareness of the Constitutional Court's precedent on withholding appointments of Constitutional Court justices. In February 2025, the Constitutional Court held that then-Acting President Choi Sang-mok's withholding of a Constitutional Court justice's appointment was unconstitutional, defining the president's appointment power over Constitutional Court justices as 'formal.' Nevertheless, the court stated, "If there is a defect in violation of laws such as the Constitution and the National Assembly Act based on the principles of parliamentary democracy in the National Assembly's election process, the president may withhold the appointment of a Constitutional Court justice and demand a re-election." It ruled that if there is a "defect violating the law" in prior procedures, the president may withhold the appointment and demand that the National Assembly restart the process. In light of this ruling, even under the view that the president's appointment power does not include the right of refusal (the formal appointment power theory), the logic holds that if there is a "defect violating the law" in the chief justice's recommendation process, the appointment may be withheld and a re-recommendation demanded. However, even if such logic applies, as noted above, the failure to reach a "prior agreement" cannot be seen as a lack of "procedural completeness" or a "defect violating the law," since prior agreement is not a procedural requirement for exercising the recommendation power.)
■ Can the President or National Assembly Restrict the Scope of the Chief Justice's Recommendation Power?
The presidential office also requested the chief justice to proceed with the re-recommendation process "respecting the recommendations of the Supreme Court Justice Candidate Recommendation Committee." This is widely interpreted as a demand that the chief justice refrain from newly organizing a recommendation committee and instead recommend one of the three remaining candidates—excluding Senior Judge Son Bong-gi, whose appointment was already refused—out of the four candidates previously recommended by the committee.
The Democratic Party's push to amend legislation concerning the Supreme Court Justice Candidate Recommendation Committee is aligned with this approach. Democratic Party leader Kim Min-seok instructed work on amending the Court Organization Act on August 24, stating, "We need to review closing loopholes to prevent trickery arising from the legal blind spot where a recommendation committee must be formed every time a Supreme Court justice is recommended." The intent is to revise the law so that even if the president refuses an appointment, the chief justice cannot form a new recommendation committee and must instead recommend another individual among the candidates previously put forward by the existing committee.
The issue is that when the presidential office's demands or the Democratic Party's legislative moves are combined with the president's exercise of the appointment rejection power, it could lead to an infringement upon the chief justice's recommendation power. If the chief justice is prevented from receiving new Supreme Court justice candidate recommendations after a presidential refusal, the chief justice has no choice but to nominate one of the three remaining candidates, excluding the one already rejected. If the president subsequently rejects appointments for two of the remaining three candidates in succession, the chief justice would ultimately be forced into a situation where they must nominate the final candidate favored by the president. As a result, the chief justice's recommendation power would effectively be reduced to 'the authority to nominate whichever candidate the president prefers most among those recommended by the Supreme Court Justice Candidate Recommendation Committee.' This would essentially nullify the chief justice's power to recommend Supreme Court justices.
Therefore, the presidential office's demand for a re-recommendation strictly within the previous pool of candidates is highly likely to be interpreted as an infringement upon the chief justice's constitutional recommendation power. The same applies to the legislative push to fundamentally block the reconstitution of the recommendation committee. In particular, if legislation is revised to legally 'bind' the chief justice's exercise of recommendation power to the recommendation committee's candidate list, it could trigger an adjudication on competence dispute at the Constitutional Court.
(In fact, the chief justice is not legally bound by the recommendation committee's results. Article 41 of the current Court Organization Act, which governs the Supreme Court Justice Candidate Recommendation Committee, merely stipulates that the chief justice "respects" the committee's recommendations. Compared to how other statutes utilizing the word "respect" in personnel affairs are interpreted, the chief justice cannot be construed as being legally "bound" by the candidate recommendation results. Thus, the chief justice may recommend a candidate not included among those proposed by the committee. However, from the standpoint of the presidential office, which views the lack of "prior agreement" with the president as a procedural defect, recommending someone not put forward by the recommendation committee would likely be defined as an even more serious procedural defect.)
■ Finding a Solution Within the Boundaries of the Constitution
The three main issues surrounding the president's refusal to appoint a Supreme Court justice can be summarized as follows:
1. Can the president's refusal of an appointment be seen as a violation of the Constitution?
- Although theoretical disputes exist, interpreting that the Constitution permits the refusal itself appears more logical.
2. Can the absence of "prior agreement" between the president and the chief justice be considered a procedural defect in the nomination process?
- Because "prior agreement" is not a procedural requirement for exercising the recommendation power, its absence cannot be seen as a procedural defect.
3. Can the president restrict the scope of nomination by requiring the chief justice to re-nominate only from among candidates previously recommended by the Supreme Court Justice Recommendation Committee? Or can the National Assembly amend relevant legislation for this purpose?
- Restricting the scope of the chief justice's recommendation power by the president or the National Assembly is highly likely to be interpreted as an infringement upon the chief justice's constitutional recommendation power.
In conclusion, the president's power of appointment and the chief justice's power of recommendation can be viewed as mutually independent powers. It is rational to interpret that the president may refuse an appointment without being bound by the chief justice's recommendation, and the chief justice may exercise the recommendation power without being bound by the president's appointment power.
Of course, if the president and the chief justice continuously fail to reach an agreement, nominations and rejections may be repeated. However, just as in the relationship between the president and the National Assembly, this is a matter that constitutional bodies exercising independent authorities must resolve through consultation within the constitutional framework. Even if the National Assembly repeatedly votes down a president's motion for consent to appoint a prime minister, resulting in a prolonged vacancy, the president cannot mobilize state emergency powers to force the National Assembly to accept the nomination.
The Constitution does not provide explicit guidelines for resolving every kind of deadlock. Even so, attempting to resolve the problem in a manner where one side incapacitates the exercise of the other's authority violates the Constitution. The insurrectionary acts of former President Yoon Suk Yeol, who attempted to neutralize the National Assembly, serve as a prime example. The Constitution presupposes resolving issues through dialogue and compromise. It is hoped that the president and the chief justice will find a rational solution within the boundaries of the Constitution.
※ Please note: This article was translated by AI and may contain errors.
Video News
