## Facts

- After Kim Dae-jung was elected President of the Republic of Korea, a majority in the National Assembly was aligned with parties that had supported his rival.
- Under the Constitution, the President appoints the Prime Minister, but the appointment requires the consent of the National Assembly.
- President Kim nominated (and sought consent for) Kim Jong-pil to serve as Prime Minister.
- The National Assembly did not vote on the nomination and took no final action to grant or deny consent.
- With the nomination unresolved, the President appointed Kim Jong-pil as acting Prime Minister without receiving a consent vote.
- 150 individual members of the National Assembly filed a competence-dispute petition in the Constitutional Court, arguing that appointing an acting Prime Minister without consent exceeded presidential authority and interfered with the Assembly’s constitutional consent power.

## Issues

1. Whether the President may appoint an acting Prime Minister without National Assembly consent when the Assembly has not voted on the President’s Prime Minister nominee.
2. Whether such an acting appointment infringes the National Assembly’s constitutional authority to consent to the appointment of the Prime Minister.
3. Whether the petitioning Assembly members showed a sufficient invasion of the Assembly’s constitutionally assigned powers to obtain relief in a competence-dispute proceeding.

## Decision

- The Constitutional Court dismissed the competence dispute and did not grant relief to the petitioning members of the National Assembly.
- The Court concluded that the President’s appointment of an acting Prime Minister, made in response to the Assembly’s failure to act, did not amount to an unconstitutional takeover of the Assembly’s consent authority over the Prime Minister appointment.
- The Court treated the acting appointment as a temporary measure aimed at preventing a vacancy in executive administration while leaving the Assembly’s ability to vote on (and thereby accept or reject) the Prime Minister nomination intact.
- The decision was divided and included dissenting views.

## Legal Principles

- A competence-dispute proceeding addresses whether one constitutional organ has exercised authority in a way that invades another organ’s powers assigned by the Constitution.
- To succeed, the petitioner must show a concrete impairment of the complaining organ’s constitutional authority; political disagreement or legislative inaction, standing alone, is not enough.
- Where the Constitution requires legislative consent for a specific office (here, Prime Minister), the consent requirement governs the formal appointment to that office; a temporary “acting” designation may be treated differently when used to avoid a governmental standstill.
- Separation of powers principles allow interpretation that prevents one branch from blocking core functions of another branch indefinitely through refusal to act, while still preserving the checking function of legislative consent (because the legislature can still vote on the nomination).

## Conclusion

This case arose from a standoff between a newly elected President and an opposition-controlled National Assembly after the Assembly failed to vote on the President’s nominee for Prime Minister. When the President responded by appointing the nominee as acting Prime Minister, 150 Assembly members sought constitutional relief, claiming their chamber’s consent power had been invaded. The Constitutional Court dismissed the petition, reasoning that the temporary acting appointment—made in the face of legislative inaction—did not extinguish or replace the Assembly’s constitutional role in consenting to the Prime Minister and therefore did not amount to an unlawful encroachment on legislative authority.


Competence Dispute Between the President of the Republic and Members of the National Assembly, 29 KCCG 583, 98 HunRa 1, July 15, 1998 (1998)