Chapter 7: Democratic Legitimacy of Law and the Constitutional Adjudication in the Republic of Korea
Woo-young Rhee I. INTRODUCTION: CONSTITUTIONAL ADJUDICATION IN THE REPUBLIC OF KOREA 1. Constitution, Constitutionalism, Constitutional Adjudication and Constitutional Court in the Republic of Korea The essence of constitutionalism lies in the fact that legislation is bound by the nation’s constitution and that the powers of the government including the executive and adjudicative powers are governed by such law.1 Since the establishment of popular sovereignty and constitutionalism, the constitution has gradually become directly applicable in and through adjudication. Like many other counterparts, under the current Constitution of the Republic of Korea, the legislative function of the nation is primarily exercised in the form of enactment of the statute and revision thereof by the National Assembly, the national legislature composed through direct democratic election, as well as administrative and judicial lawmaking. Further, under the separation of powers design of the current Constitution, the Constitutional Court of the Republic of Korea checks and controls such legislative function, to keep both the process and the substance of the legislative Act in compliance with the Constitution. Specifically, control over the legislative process is effectively exercised by way of adjudication over disputes between and among the governmental institutions, while control over the legislative outcome including the statutes, executive orders and rules is primarily exercised by way of constitutionality review over a specific law or its provisions. A system under the Constitution of the Republic of Korea through which a separate and independent constitutional institution reviews the constitutionality 1 Kun Yang, Lectures on Constitutional Law 23 (Bobmunsa...
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