Chapter 6: The Structure and Basic Principles of Constitutional Adjudication in the Republic of Korea
6. The structure and basic principles of constitutional adjudication in the Republic of Korea Jongcheol Kim I. INTRODUCTION Modern constitutionalism posits the political doctrine that political power should be authorized and bound by a constitution enacted according to the will of the people and that people’s fundamental liberties and rights enshrined in the constitution should be protected (Lane 1996, p.17). This doctrine has become ideologically dominant in most Western countries since the 18th century. In 1948, when a three-year long period of American military rule came to an end, Koreans, who had never experienced Western-style civil revolution throughout their history, had the opportunity to establish a republican form of government adopting the principal tenets of constitutionalism.1 Since then, at least on the surface, Korea has been a constitutionalist state as it has maintained a written constitution confirming popular sovereignty and unalienable human rights. However, one would be hard pressed to make a convincing argument that the reality of Korea has matched this superficial appearance. The history of modern Korea has shown that the core components of constitutionalism, namely the protection of human rights, popular sovereignty, and the separation of powers, have never been properly put into practice. The provisions of the Korean constitutions since the First Republic (1948–1960) were merely ‘nominal’ as they were continuously ignored by authoritarian regimes. However, the Korean people’s consistent struggle for democracy encountered a watershed in the June 1987 Uprising, leading to the ninth revision of the Korean Constitution. Under this new constitution, Korean...
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