This chapter examines the dynamics of having a constitutional court separate from the ordinary appellate structure of a court system, using South Korea and Taiwan as comparative case studies. The authors open by examining the differences that choices of institutional design, appointment mechanisms, and contextual dynamics make in the development of systems of constitutional review. They find that notwithstanding a clear jurisdictional distinction, tension nevertheless emerges between the Constitutional Court and the Supreme Court in South Korea, whereas in Taiwan, where there is not a clear division of jurisdiction, the Constitutional Court, Supreme Court, and Supreme Administrative Court have collaborated. This chapter concludes by suggesting that institutional design, appointment mechanisms and contextual dynamics are the key to explaining the competitive or collaborative power configurations among multiple top courts.
Wen-Chen Chang and David S. Law
Abstract: Despite the resurgence of comparative constitutional law, there is little English-language literature that takes an explicitly comparative perspective on China’s Constitution or uses China as a comparator. This is because the study of comparative constitutional law usually focuses on a handful of high-prestige democracies or on the decisional output of courts engaged in judicial review, a feature absent in China. While China has in practice repudiated constitutionalism, we argue that it is a mistake to define the core concepts of constitution and constitutionalism in a manner that excludes China. Having summarized the state of Chinese constitutional law, highlighted options for defining constitutionalism, and explored the values in taking China seriously as an object of study, we conclude by nominating an additional function, that of constructive irritant, in the study of Chinese constitutionalism as generating a dialectical and critical discourse in the study of comparative constitutional law particularly for authoritarian regimes.