KOR
① Can the president's refusal of an appointment be considered a violation of the Constitution?
② Can the absence of a "prior agreement" between the president and the chief justice be considered a procedural defect in the recommendation process?
③ Can the president restrict the scope of recommendation so that the chief justice must recommend a justice from among the candidates previously recommended by the existing Supreme Court Justice Candidate Recommendation Committee? Or can the National Assembly amend relevant legislation for this purpose?
By examining these three issues one by one, this article analyzes the significance of the recent refusal to appoint a Supreme Court justice.
■ Can the President Refuse to Appoint a Supreme Court Justice?
There are two legal theories: one arguing that the president cannot refuse an appointment, and another arguing that the president can. 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 power to appoint Supreme Court justices. The procedure for appointing Supreme Court justices is stipulated in Article 104, Paragraph 2 of the Constitution.
Article 104, Paragraph 2 of the Constitution: The Supreme Court Justices shall be appointed by the President upon the recommendation of the Chief Justice with the consent of the National Assembly.
The Constitution separately defines the chief justice's "power of recommendation," 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.
Regarding this, legal theories are divided into the formal appointment power theory and the substantive appointment power theory. Proponents of the formal appointment power theory believe that the president's authority to appoint Supreme Court justices does not include the power to refuse an appointment. This means the president is obligated to appoint a person recommended by the chief justice and consented to by the National Assembly. Conversely, proponents of the substantive appointment power theory argue that the appointment power includes the authority to refuse an appointment. This means the president can substantively decide whether or not to make the appointment. If the interpretation that the power is merely formal is correct, President Lee Jae-myung's refusal to appoint constitutes a "violation of the Constitution," as the opposition party claims. If the substantive interpretation is correct, then regardless of the validity of the reasons presented 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 authority to appoint Constitutional Court justices. There is an established Constitutional Court precedent confirming that the president's power to appoint Constitutional Court justices is a formal authority. 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-hyeok, the Constitutional Court determined that the president's appointment power over Constitutional Court justice candidates elected by the National Assembly is "formal." The court stated that the president has an obligation to appoint a person elected by the National Assembly as a Constitutional Court justice. Proponents of the formal appointment power theory similarly interpret that the president has a duty to appoint a 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 distinct. They focus on the difference in terminology used in the Constitution. Regarding 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). Regarding Supreme Court justices, however, it is stipulated that the president appoints persons "recommended" by the Chief Justice with the consent of the National Assembly. Their stance is that because the chief justice's "nomination" of a Constitutional Court justice and "recommendation" of a Supreme Court justice carry different legal meanings, a recommendation for a Supreme Court justice does not generate an obligation to appoint.
They argue that the chief justice's power to "recommend" Supreme Court justices should instead be compared to the prime minister's power to "recommend" State Council members (Article 87, Paragraph 1 of the Constitution). It is generally interpreted that the president can refuse an appointment upon the prime minister's recommendation of State Council members. This means the president possesses substantive appointment authority. Their position is that the same interpretation should apply to the chief justice's "recommendation" of Supreme Court justices.
Another basis presented by the substantive appointment power theory is the history of constitutional amendments. In the Constitutions of the Second and Third Republics, there were explicit provisions stating that when the recommending authority recommends a Supreme Court justice, the president must appoint that person. (See the constitutional citations below.) Controversy had erupted during the Syngman Rhee administration when the president refused to appoint a recommended chief justice; following that, the relevant clause was introduced in the Second Republic Constitution to clarify that the president's appointment power over Supreme Court justices was a formal authority.
However, in the Yushin Constitution amended in 1972, the clause defining the president's appointment power over Supreme Court justices as a formal authority was deleted. The clause stipulating that the president must appoint the recommended individual disappeared. (See the cited text below.) Although the constitutional clauses regarding Supreme Court justice appointment procedures underwent minor revisions through the Fifth Republic Constitution to the current Constitution, the clause defining the president's appointment power as a formal authority was never revived.
Proponents of the substantive appointment power theory view this constitutional amendment history as reflecting the intent of the constitutional revision authority. Deleting the clause that defined the president's appointment power over Supreme Court justices as a formal power indicates that it was no longer to be interpreted as a formal authority. Therefore, their position is that the current constitutional provision should be interpreted as granting substantive appointment authority to the president.
▶ Article 78 of the Second Republic Constitution: The Chief Justice and Justices of the Supreme Court shall be elected by an electoral college composed of persons qualified as judges, and 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 appointed by the President upon the recommendation of the Chief Justice with the consent of the Judges Recommendation Council. In this case, when there is a recommendation, the President must appoint them. (Amended December 26, 1962)
▶ Article 103 of the Yushin Constitution:
① The 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. (Amended December 27, 1972)
▶ Article 104, Paragraph 2 of the Current Constitution: The Supreme Court Justices shall be appointed by the President upon the recommendation of the Chief Justice with the consent of the National Assembly. (Amended October 29, 1987)
Personally, I believe it is more reasonable to interpret the president's appointment authority as a substantive power that includes the authority to refuse an appointment. Given that the president's appointment power over Constitutional Court justices applies to those "elected" or "nominated" while the power over Supreme Court justices applies to those "recommended," that it is generally accepted that the president can refuse an appointment when the prime minister "recommends" State Council members, and that the past constitutional provisions defining the president's appointment power as a formal authority were deliberately deleted starting with the 1972 amendment, it is logical to interpret that the president has the substantive authority to refuse the appointment of a Supreme Court justice. In this case, the president's refusal to appoint a Supreme Court justice cannot be defined as a constitutional violation.
Furthermore, it should also be pointed out that the Supreme Court has expressed support for this interpretation. Minister of National Court Administration Roh Kyung-pil stated during a National Assembly Legislation and Judiciary Committee session on August 19 that the president has the authority to refuse an appointment. (Justice Roh Kyung-pil, an incumbent Supreme Court justice, is known as an expert in constitutional and administrative law.) In light of this, expectations from some quarters that Chief Justice Cho Hee-dae will file for a competence dispute adjudication against President Lee Jae-myung's refusal can be evaluated as having low feasibility.
○ Lawmaker Park Gyun-taek: Then, in the end, does the recommending authority make the appointment?
● National Court Administration Minister Roh Kyung-pil: That is not the case.
○ Lawmaker Park Gyun-taek: Then why is the appointing authority necessary?
● National Court Administration Minister Roh Kyung-pil: In any case, I believe the appointing authority has the power to refuse the appointment.
(Omitted)
○ Lawmaker Park Gyun-taek: No, what I mean is, what is the reason for giving the appointment power to the president?
● National Court Administration Minister Roh Kyung-pil: It is to determine whether to appoint or not.
○ Lawmaker Park Gyun-taek: That is how it is, right?
● National Court Administration Minister Roh Kyung-pil: Yes.
- From the minutes of the National Assembly Legislation and Judiciary Committee meeting on August 19, 2026 -
■ Can a Recommendation Without a "Prior Agreement" Be Considered a Procedural Defect?
However, apart from whether the president possesses the authority to refuse a Supreme Court justice appointment, the reason for refusal announced by Senior Presidential Spokesperson Kang Yu-jung when demanding a "re-recommendation" is inappropriate. This is because the presidential office cited a lack of "procedural completeness" due to the failure of the president and chief justice to reach a "prior agreement" as the main reason for refusal. However, a "prior agreement" cannot be a procedural requirement for the exercise of the chief justice's recommendation power, so the absence of a 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, independent authorities. 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, constitutions prior to 1972 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 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 constitutional convention. However, such necessity does not make a "prior agreement" between the president and the chief justice a procedural requirement. Nowhere in the Constitution or the law is a prior agreement with the president stipulated as a procedural requirement for exercising the recommendation power. Furthermore, if the chief justice were only allowed to exercise the recommendation power after reaching a "prior agreement" with the appointing president, the president would likewise only be able to request consent from the National Assembly after reaching a "prior agreement" with the legislature. Naturally, the president can request confirmation from the National Assembly without prior agreement. Therefore, the presidential office's claim that there was a lack of "procedural completeness" due to the lack of a "prior agreement" is invalid.
(The presidential office's citing of a lack of "procedural completeness" due to the absence of a "prior agreement" appears to be conscious of the Constitutional Court's precedent regarding the withholding of Constitutional Court justice appointments. In February 2025, while ruling that then-Acting President Choi Sang-mok's withholding of appointments was unconstitutional, the Constitutional Court defined the president's appointment power over Constitutional Court justices as "formal." Nonetheless, the court stated, "If there is a defect in violation of laws such as the Constitution and the National Assembly Act based on the principle of parliamentary democracy during the election process (of a Constitutional Court justice candidate by the National Assembly), the president may withhold the appointment and request a re-election." It ruled that if there is a "defect in violation of law" in the pre-appointment procedures, the president may withhold the appointment and request the National Assembly to redo the process. In light of this decision, even if one takes the position that the president's appointment power does not include the right to refuse (formal appointment theory), the logic could hold that if there is a "defect in violation of law" in the chief justice's recommendation process, the president may withhold the appointment and demand a re-recommendation. However, even if such logic holds, as pointed out above, the failure to reach a "prior agreement" can hardly be regarded as a lack of "procedural completeness" or a "defect in violation of law." A prior agreement is not a procedural requirement for exercising recommendation authority.)
■ Can the President or the National Assembly Restrict the Scope of the Chief Justice's Recommendation Power?
The presidential office also requested that the chief justice proceed with the re-recommendation process while "respecting the recommendations of the Supreme Court Justice Candidate Recommendation Committee." This is being interpreted as a demand that the chief justice not form a new recommendation committee, but instead recommend one of the remaining three candidates from the four originally recommended by the existing committee, excluding Senior Judge Son Bong-ki, whose appointment was already refused.
The Democratic Party's move to revise legislation concerning the Supreme Court Justice Candidate Recommendation Committee aligns with this stance. Democratic Party Leader Kim Min-seok instructed work on amending the Court Organization Act on August 24, saying, "We must review amending the legal loophole that requires forming a recommendation committee every time a Supreme Court justice is recommended, in order to prevent procedural tricks." This aims to change the law so that even if the president refuses an appointment, the chief justice cannot form a new committee and must recommend another candidate from among those recommended by the existing committee.
The problem is that if the presidential office's demand or the Democratic Party's legislative move is combined with the president's exercise of appointment refusal power, it could result in infringing upon the chief justice's recommendation authority. If the chief justice cannot receive new candidate recommendations following a presidential refusal, the chief justice has no choice but to recommend one of the three remaining candidates recommended by the existing committee. If the president subsequently refuses appointments for two of the remaining three candidates in succession, the chief justice will ultimately be forced to recommend the last remaining candidate favored by the president. Consequently, the chief justice's recommendation power would be reduced to 'the authority to recommend the candidate most favored by the president among those recommended by the Supreme Court Justice Candidate Recommendation Committee.' This can be evaluated as effectively neutralizing the chief justice's constitutional recommendation power.
Therefore, the presidential office's demand for a re-recommendation from within the existing pool carries a strong possibility of being interpreted as infringing upon the chief justice's recommendation power guaranteed by the Constitution. The legislative movement to fundamentally block the reconstitution of the recommendation committee is no different. In particular, if legislation is revised to make the exercise of the chief justice's recommendation power legally 'bound' by the candidate recommendation results of the recommendation committee, it could lead to a competence dispute adjudication before the Constitutional Court.
(In fact, the chief justice is not legally bound by the recommendation results of the Supreme Court Justice Candidate Recommendation Committee. Article 41 of the Court Organization Act, the current statute regarding the recommendation committee, merely stipulates that the chief justice "respects" the committee's recommendation results. Compared to how other statutes using the term "respect" in personnel affairs are interpreted, it cannot be interpreted that the chief justice is legally "bound" by the committee's recommendations. Therefore, the chief justice can recommend an individual who was not among the candidates recommended by the committee. However, from the presidential office's perspective, which views the lack of a "prior agreement" with the president as a procedural defect, recommending someone not suggested by the recommendation committee would likely be defined as an even more serious procedural defect.)
■ Seeking Solutions Within the Framework of the Constitution
The three 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 considered a violation of the Constitution?
- Although legal theories diverge, the view that the Constitution permits the refusal of an appointment itself appears more logical.
② Can the absence of a "prior agreement" between the president and the chief justice be considered a procedural defect in the recommendation process?
- Because a "prior agreement" is not a procedural requirement for exercising recommendation authority, the lack of a prior agreement cannot be viewed as a procedural defect.
③ Can the president restrict the scope of recommendation so that the chief justice must recommend a justice from among the candidates previously recommended by the existing Supreme Court Justice Candidate Recommendation Committee? Or can the National Assembly amend relevant legislation for this purpose?
- Restricting the scope of the chief justice's recommendation authority by either the president or the National Assembly is highly likely to be interpreted as infringing upon the chief justice's recommendation power guaranteed by the Constitution.
In conclusion, the president's appointment power and the chief justice's recommendation power can be seen as independent authorities. It is reasonable to interpret that the president can refuse an appointment without being bound by the chief justice's recommendation, and the chief justice can exercise recommendation authority without being bound by the president's appointment power.
Naturally, if the president and the chief justice continually fail to reach an agreement, cycles of recommendation and refusal may repeat. However, much like the relationship between the president and the National Assembly, this is an issue to be resolved through consultation within the constitutional framework by constitutional bodies exercising independent authorities. This is analogous to how, even if the National Assembly repeatedly rejects presidential requests for consent to appoint a prime minister—prolonging a vacancy in the post—the president cannot mobilize national emergency powers to force the National Assembly to accept the appointment.
The Constitution does not provide explicit resolution guidelines for every type of stalemate. Even so, attempting to resolve an issue by having one branch neutralize another's exercise of authority constitutes a constitutional violation. Former President Yoon Suk-yeol's act of rebellion in attempting to paralyze the National Assembly serves as a representative example. The Constitution envisions resolving issues through consultation 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.
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