Functional Comparison of Judicial Review in South Korea and Japan

South Korea and Japan shows a stark difference regarding its operation of judicial review, the former much more active than the latter. The question posed by this research is to ask why such differences exist. The paper argues two possible answers. One is institutional design. In Korea, judicial review is conducted by a separate Constitutional Court, while the Supreme Court conducts judicial review in Japan among its other duties which is already overwhelming on its own. The other is historical context. The Korean Constitutional Court was established in 1988 following Korea’s democratization after a long history of authoritarian regimes and has earned the trust of the Korean people through careful selection of cases and timely interventions. In Japan, the courts have retained a general low posture historically, and the administration established a supplementary institution, the Cabinet Legislation Bureau, that reduces the need for an extensive review.