Chapter 8: Korean Constitutional Court and the Due Process Clause
Jibong Lim I. INTRODUCTION The principle of due process of law is usually praised as ‘the most important constitutional principle for human rights protection’ (Hu 1990: 349). It was not invented by the U.S. but originated from the Magna Carta in England in 1215. This legal principle had gradually developed in England and was included in the U.S. Constitution in the 5th and 14th Amendments. In addition, the Japanese Constitution also adopted a due process clause in Art. 31 after the 2nd World War. Article 31 of the Japanese Constitution provides, ‘No one shall be deprived of life and liberty, or punished with other penalties without due process of law.’ The Civil War (1861–1865) in the States stemmed from conflicts of interests between the north and the south and three Post-War Amendments were introduced to the U.S. Constitution in 1865 (13th Amendment), 1868 (14th Amendment), and 1870 (15th Amendment), the common spirit of which was the prohibition of racial discrimination. Originally, the 5th Amendment, which was added to the U.S. Constitution in 1791, had prescribed that, ‘No person shall … be deprived of life, liberty or property without due process of law…’ And among the three Post-War Amendments, Section 1 of the 14th Amendment provided, ‘… nor shall any state deprive any person of life, liberty or property without due process of law.’ These two clauses collectively represent due process principles in the U.S. Constitution. The due process principle has been developed mainly by the various interpretations of the due...
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