“Best out of three” runs deep in settling grievances in Korean culture. This tradition apparently explains the exploding dockets of the Korean Supreme Court. Almost regardless of merit, many litigants like to have a day in the Supreme Court after adverse decisions in the District Court and High Court. An appeal to the nation’s highest court has been acknowledged as the right of every individual.

The inevitable outcome of this stance is the exploding caseloads at the Supreme Court. The numbers are stunning. Just last year, the Korean Supreme Court handled as many as 38,141 cases. As there are 12 justices at the court who participate in hearing ordinary disputes (excluding the chief Justice and a justice who assumes the role of the Head of the Court Administration), this translates into 3,178 cases for each justice, which again means 8.7 cases for each judge each day. As access to the nation’s highest court is regarded as a right, there is no way to control the caseload. It is dreaded that this year will see 40,000 cases brought.

What about other countries? Quite a few countries have adopted a “judicial discretion” system as opposed to a system granting such a right, due to this very problem of managing the docket of the highest courts. For instance, the U.S. Supreme Court hears only 70-80 cases out of 10,000 petitions submitted each year. Only those with important national policy implications are received, while others are dismissed. The resources of the court are not mobilized to determine erroneous factual findings or misapplication of law.

As the management of cases swirls out of control, a serious discussion is currently underway in Korea to reform the Supreme Court appellate mechanism. An idea to create a new appellate court between the High Court and the Supreme Court to handle ordinary three-level appeal cases while leaving the highest court to deal with only cases with national implication or those of imperative public importance has been floated for some time now. The Supreme Court itself has been busy advocating the proposal to introduce a new appellate court. Its public relations activity has been noticeable recently. A bill implementing this new idea is being tabled at the regular session of the National Assembly this fall.

As with other judicial reforms, the discussion has not always been as merry and consensual as one would hope. The practical demand notwithstanding, the controversy continues. There is strong opposition in the legal community including the Korean Bar Association. Critics argue that this idea is unconstitutional as the Korean Constitution guarantees the right to review by the nation’s highest court, not by some other substitutes. The best way to deal with the exploding dockets, they argue, is to increase the number of Supreme Court justices. Yet another lingering question is how to divide the role between the Supreme Court under the new system and the existing Korean Constitutional Court which has the authority to hear and determine issues of national importance within the ambit of the Constitution.

All these legal issues and questions do merit careful attention, of course. There are certainly many associated issues that need to be clarified or discussed beforehand. But, in any event, handling 40,000 cases a year is simply a practical impossibility. A new appellate court seems to be the only way to ensure a three-level judicial process and at the same time save the Supreme Court from being swamped.

The reform, if approved and implemented, would mark a major change of the substantive variety in the Korean judicial system. This fall we will see an intense debate over the merits of this new proposal, both inside and outside the National Assembly. 

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. -- Ed.