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Book cover Introduction to Korean Law

Abstract

This chapter aims to introduce an outline and the main features of the Constitution of the Republic of Korea (hereinafter the “ROK”) and to examine recent developments of constitutional democracy in the ROK. I will begin with a brief sketch of the history of constitutionalism in modern Korea. Next comes a section explaining the structure of the Constitution in terms of the two pillars of constitutionalism: democracy and the protection of basic human rights. Before jumping into the conclusion, I will look into the unique part of the Korean Constitution on the relationship between the State and the economy. The concluding part consists of features of Korean constitutionalism in the present context.

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Notes

  1. 1.

    Constitutional Court Decision 92Hun-Ba48, July 29, 1993, Decisions of the Korean Constitutional Court, Vol. 5, No. 2, 65; Supreme Court Decision 2007Do10121 (Kong2011Sang, 148).

  2. 2.

    The radical feature of the First Constitution can be identified by two representative provisions. First, workers are constitutionally entitled to the equal allotment of profits earned by private companies (Article 18). Second, it declared that economic order is based upon the accomplishment of social justice guaranteeing basic needs in normal life of every citizen and the well-balanced development of the national economy (Article 84).

  3. 3.

    Kwon Y-s (2006), pp. 142–143, 149–151.

  4. 4.

    In the previous constitutions, the Constitutional Commission as a special agency has the competence of constitutional adjudication. However, the composition of the Constitutional Court could not be completed as the constitution was ceased by the military coup.

  5. 5.

    The Constitution of 1962 was enacted in 1962 but came into effect in December 1963.

  6. 6.

    Supreme Court (en banc) Decision 96Do3376 (Jip45(1)Hyung, 1; Gong1997.5.1.(33), 1303).

  7. 7.

    In the impeachment case against President Moo-hyun Roh, the Constitutional Court ruled that the President has discretion to decide whether a referendum is deemed necessary (Constitutional Court Decision 2004Hun-Na1, May 14, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 609).

  8. 8.

    The Right to Vote of Nationals Residing Abroad Case (Constitutional Court Decision 2004Hun-Ma644, 2005Hun-Ma360 (Consolidated), June 28, 2007, Decisions of the Korean Constitutional Court, Vol. 19, No. 1, 859).

  9. 9.

    Ibid., 859.

  10. 10.

    Constitutional Court Decision 97Hun-Ma253·270 (Consolidated), January 28, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 1, 54.

  11. 11.

    In some countries, like the USA, the structural principle of checks and balances developed as a safeguard against the possible abuse of governmental power is regarded as an independent one, separate from that of the separation of powers (Currie D 2000). However, in Korean constitutional jurisprudence, the latter is often understood as incorporating the former (Huh Y 2010; Constitutional Court Decision 90Hun-Ba24, April 28, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 225).

  12. 12.

    Constitutional Court Decision 89Hun-Ga8, January 28, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 4, 18; Constitutional Court Decision 90Hun-Ba23, April 14, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 162, 171.

  13. 13.

    Constitutional Court Decision 92Hun-Ga8, December 24, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 853, 882–883; Constitutional Court Decision 95Hun-Ga5, January 25, 1996, Decisions of the Korean Constitutional Court, Vol. 1, 1, 18–19.

  14. 14.

    Constitutional Court Decision 2007Hun-Ma1468, January 10, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 1 Part 1, 1, 33–34.

  15. 15.

    Above all, one remaining task in the democratization process is the reform of institutions and practices in relation to law-enforcement authorities, like the police, prosecutors, and national intelligence officials, which have arguably been major means of socio-political control by the authoritarian Presidents. See Kim J (2010c), p. 147.

  16. 16.

    The doctrine of the rule of law may be discerned from that of Rechtsstaat at least in terms of its diverse ideological origins and different paths of development. However, considering the purpose and scope of this chapter, it would be safe to assume that both are the same at least in the constitutional implications and functions in constitutional democracies. In fact, the Constitutional Court and the ordinary courts have used these two ideas as similar principles in their constitutional meanings by often citing together in the same context (e.g., “The system of impeachment against the President intends to realize the rule of law or the principle of Rechtsstaat that every citizen is governed by law and even a man of national power does not stand above the law[Emphasis added.].” Constitutional Court Decision 2004Hun-Na1, May 14, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 632–632).

  17. 17.

    Kwon Y (2010).

  18. 18.

    Constitutional Court Decision 98Hun-Ma168, October 15, 1998, Decisions of the Korean Constitutional Court, Vol. 10, No. 2, 586.

  19. 19.

    Kim J (2010a), p. 130.

  20. 20.

    Constitutional Court Decision 89Hun-Ga95, September 3, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 245.

  21. 21.

    Kim J (2005a).

  22. 22.

    Constitutional Court Decision 96Hun-Ga2, 96Hun-Ba7·13 (Consolidated), February 16, 1996, Decisions of the Korean Constitutional Court, Vol. 8, No. 1, 51.

  23. 23.

    Constitutional Court Decision 94Hun-Ba12, October 26, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 447.

  24. 24.

    Constitutional Court Decision 89Hun-Ma221, April 28, 1994, Decisions of the Korean Constitutional Court, Vol. 6, No. 1, 239. In this 8-1 decision where the Government Organization Act together with the National Security Planning Agency Act, the Constitutional Court held that the President is the final decision-maker within the executive branch while others including the Prime Minster are assistants to the President.

  25. 25.

    In the presidential impeachment case of 2004, the Constitutional Court made clear that the resolution for the removal of the Prime Minister or State Councilors from office cannot be construed to have binding force on the President because the nature of the resolution is literally a recommendation rather than a self-executing final decision.

  26. 26.

    Article 43 of the Constitution prohibits members of the National Assembly from concurrently holding any other office prescribed by law, but the office of a State Councilor or Minister does not fall into the category of statutory prohibited offices.

  27. 27.

    The number of members of the National Assembly is the only constitutional regulation except electoral principles of universal, equal, direct, and secret ballot. Therefore, minimal age, citizenship, and residence requirements for the members of the National Assembly, and restrictions on the right to vote are provided in the Election Act.

  28. 28.

    Constitutional Court Decision 2000Hun-Ma91·112·134 (Consolidated), July 19, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 77. See also Kim J (2002b).

  29. 29.

    Kwon Y-s (2006), pp. 409–421.

  30. 30.

    Constitutional Court Decision 2004Hun-Na1, May 14, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 609. In this case, the Constitutional Court discerned the President from other officials in determining whether the required violation amounts to the required level of gravity because, being the head of the State as well as the head of the Executive elected directly by the people, the dismissal of the President can cause much greater change in the working of constitutional arrangements and political conflicts.

  31. 31.

    Constitutional Court Decision 2004Hun-Na1, May 14, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 609.

  32. 32.

    Constitutional Court Decision 2004Hun-Na1, May 14, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 609.

  33. 33.

    Constitutional Court Decision 2007Hun-Ma700, January 17, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 1, Part 1, 139.

  34. 34.

    Article 11 of the Government Organization Act.

  35. 35.

    As of February 2011, there are 15 Bus, 2 Cheos, and 18 Cheongs, as well as 4 basic executive commissions.

  36. 36.

    Article 18(1) of the Government Organization Act.

  37. 37.

    See Articles 86(3) and 87(4) of the Constitution.

  38. 38.

    See generally, Kim J (2002a).

  39. 39.

    Constitutional Court Decision 2009Hun-Ra6, October 10, 2010, Official Gazette No. 169, 1821 (jurisdiction dispute between the NHRC and the President).

  40. 40.

    There are four prongs of subordinate election commission: 16 Si (special metropolitan city, metropolitan city)/Do (Provincial) Election Commissions, 249 Gu (ward)/Si (municipal)/Gun (country) Election Commissions and 3,479 voting District Election Commissions in each Eup/Myun/Dong to guarantee more convenient voting. See the English version of homepage of the National Election Commission (http://www.nec.go.kr/engvote/about/organization.jsp).

  41. 41.

    As Article 101(2) and Article 102(3) delegate to the legislature the power to establish subordinate courts and their organization, Article 3(1), Part II and Part III of the Court Organization Act classify six categories of court: the Supreme Court, High Court, Patent Court, District Court, Family Court, and Administrative Court.

  42. 42.

    There have been debates among constitutional law scholars on the nature of constitutional adjudication in Korean constitutional arrangements, but it would be safe to say that the Constitutional Court is constituted and performs its duties in a mostly similar manner to the judicial process. See Kim J (2005b), pp. 14–17, Jeong J-h (1994) and Huh Y (2009).

  43. 43.

    This is under criticism among public commentators and constitutional scholars on the ground that the Chief Justice with less democratic legitimacy in comparison with the President and the National Assembly is granted the same authority as the latter two. See Kim J (2010b).

  44. 44.

    For a theoretical account for people’s participation in the judicial process from the perspective of participatory democracy, see Kwon Y-s (2006), pp. 563–566.

  45. 45.

    Constitutional Court Decision 2008Hun-Ba12, November 26, 2009, Decisions of the Korean Constitutional Court, Vol. 21, No. 2, Part 2, 493.

  46. 46.

    The ROK Constitutional Court unequivocally confirmed this in a case reviewing the constitutionality of the controversial provisions of the National Security Act. See Constitutional Court Decision 89Hun-Ga113, April 2, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 49 (Adjudication on unconstitutionality of Article 7 of the National Security Act).

  47. 47.

    Article III, Section 1 of the Constitution of the USA.

  48. 48.

    Constitutional Court Decision 90Hun-Ba24, April 28, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 225 (Constitutional petition concerning Article 5-3(2) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes).

  49. 49.

    For a brief introduction to the constitutional adjudication system of the ROK, see Kim J (2010a), ch. 6. The author takes advantage of some relevant parts of that essay in this section without specific citations.

  50. 50.

    The origin of this ideal can be traced in Article 21(2) of the Basic Law of the Federal Republic of Germany. Article 8(4) of the ROK Constitution prohibits a political party from having a purpose and acting contrary to the basic democratic order. It implies that a totalitarian or autocratic regime denying constitutional democracy, for example, the rule of institutionally dominant one political party as in a communist state cannot be allowed even if an absolute majority of the people wishes to adopt.

  51. 51.

    Park J (2008).

  52. 52.

    As of January 31, 2011, 22 years after its establishment, the Court has invalidated or partially repudiated legislative acts in 526 cases, of which 273 cases were referred by the ordinary courts for rulings on the constitutionality of laws and 253 cases were heard in the form of constitutional complaints. The latter number is exclusive of 106 cases in which statutory provisions were struck down in the course of constitutional complaints directly challenging governmental powers under Article 68(1) of the CCA. See the official statistics of the Constitutional Court on its website http://english.ccourt.go.kr/.

  53. 53.

    In this sense, the ROK is not an exception to the global trend of “judicialization of politics” or “Juristocracy”. See Kim J (2008) and Hirschl R (2006).

  54. 54.

    Kim J (2005b), pp. 9–48.

  55. 55.

    Yang K et al. (1999).

  56. 56.

    Kim J (2005b), pp. 27–28.

  57. 57.

    Another noteworthy problem is the required mandatory representation by attorney in the constitutional adjudication procedure according to Article 25 of the CCA. This means that without an attorney, ordinary citizens cannot bring their cases before the Court as they are forced by law to hire an attorney. The problem of this requirement is that it may prevent those with limited financial resources from having recourse to the Court. For this reason, Article 25(3) of the CCA was challenged in 1990. The Court upheld the constitutionality of this provision, however, on the ground that “mandatory representation by attorney would be advantageous to the petitioners by guaranteeing professional and skillful representation and thus preventing reckless and negligent pursuit of complaints.” Constitutional Court Decision 89Hun-Ma120·212 (Consolidated), September 3, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 296.

  58. 58.

    However, giving state institutions a much higher priority may not be compatible with the ideal of constitutional adjudication cherishing the protection of constitutional rights and the rule of law. For other problems with this special quorum, see Kim J (2001).

  59. 59.

    Ibid., p. 28.

  60. 60.

    See Constitutional Court Decision 96Hun-Ma172·173 (Consolidated), October 31, 2002, Decisions of the Korean Constitutional Court, Vol. 9, No. 2, 842.

  61. 61.

    Constitutional Court Decision 2001Hun-Ra1, October 31, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 2, 362, 370; Constitutional Court Decision 2002Hun-Ra2, October 31, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 2, 378, 386.

  62. 62.

    Constitutional Court Decision 2005Hun-Ra3, May 29, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 1, Part 2, 41.

  63. 63.

    Constitutional Court Decision 2005Hun-Ra3, May 29, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 1, Part 2, 41.

  64. 64.

    See Competence Dispute over Inspection of Autonomous Affairs of Local Government Case (Constitutional Court Decision 2006Hun-Ra6, May 28, 2009, Decisions of the Korean Constitutional Court, Vol. 21, No. 1, Part 2, 418).

  65. 65.

    Constitutional Court Decision 89Hun-Ma82, September 10, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 306, 310.

  66. 66.

    Constitutional Court Decision 93Hun-Ma120, December 29, 1994, Decisions of the Korean Constitutional Court, Vol. 6, No. 2, 477, 480; Constitutional Court Decision 90Hun-Ma56, June 3, 1991, Decisions of the Korean Constitutional Court, Vol. 3, 289, 295–296.

  67. 67.

    Constitutional Court Decision 93Hun-Ma120, December 29, 1994, Decisions of the Korean Constitutional Court, Vol. 6, No. 2, 477, 480.

  68. 68.

    Constitutional Court Decision 2004Hun-Ba50, February 23, 2006, Decisions of the Korean Constitutional Court, Vol. 18, No. 1, Part 1, 170, 179.

  69. 69.

    Constitutional Court Decision 92Hun-Ma68, October 1, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 659.

  70. 70.

    The Court calls this rule as “parliamentary reservation”. See Constitutional Court Decision 98Hun-Ba70, May 27, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 1, 633, 643–644.

  71. 71.

    Television Broadcasting Fee Case (Constitutional Court Decision 98Hun-Ba70, May 27, 1999 Decisions of the Korean Constitutional Court, Vol. 11, No. 1, 633).

  72. 72.

    Constitutional Court Decision 92Hun-Ga11, 93Hun-Ga8·9·10 (Consolidated), September 28, 1995, Decisions of the Korean Constitutional Court, Vol. 7, Vol. 2, 264, 278.

  73. 73.

    Constitutional Court Decision 95Hun-Ba1, November 28, 1996, Decisions of the Korean Constitutional Court, Vol. 8, No. 2, 537, 545.

  74. 74.

    Constitutional Court Decision 89Hun-Ma82, September 10, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 306, 310; Constitutional Court Decision 98Hun-Ma216, June 1, 2000, Decisions of the Korean Constitutional Court, Vol. 12, No. 1, 622, 648.

  75. 75.

    Constitutional Court Decision 2006Hun-Ba35, October 30, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 2, Part 1, 793, 804–805.

  76. 76.

    For cases on the right to choose one’s partner in marriage or sexual life, see Constitutional Court Decision 89Hun-Ma82, September 10, 1990, Decisions of the Korean Constitutional Court, Vol. 2, 306, 310; Constitutional Court Decision 2000Hun-Ba60, October 25, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 480, 485; Constitutional Court Decision 99Hun-Ba40, 2002Hun-Ba50 (Consolidated), May 26, 2005, Decisions of the Korean Constitutional Court, Vol. 14, No. 2, 390, 397. Regarding the right to personal information based upon human dignity and worth, the right to the pursuit of happiness, see Constitutional Court Decision 99Hun-Ma513, 2004Hun-Ma190 (Consolidated), May 26, 2005, Decisions of the Korean Constitutional Court, Vol. 17, No. 1, 668, 683.

  77. 77.

    Constitutional Court Decision 2000Hun-Ma159, September 27, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 353, 362.

  78. 78.

    Constitutional Court Decision 2003Hun-Ma457, August 26, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 2 Part 1, 355–363.

  79. 79.

    Constitutional Court Decision 99Hun-Ba76, October 31, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 2, 410.

  80. 80.

    Constitutional Court Decision 2005Hun-Ma1139, May 31, 2007, Decisions of the Korean Constitutional Court, Vol. 19, No. 1, 711, 724–727 (disclosure of medical records of public officials above 4th grade); Constitutional Court Decision 2006Hun-Ma402·531 (Consolidated), April 24, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 1, Part 1, 674, 681–684 (disclosure of criminal records of election candidates).

  81. 81.

    Constitutional Court Decision 89Hun-Ma160, April 1, 1991, Decisions of the Korean Constitutional Court, Vol. 3, 149, 153; Constitutional Court Decision 96Hun-Ga11, March 27, 1997, Decisions of the Korean Constitutional Court, Vol. 9, No. 1, 245, 263; Constitutional Court Decision 92Hun-Ba28, November 27, 1997, Decisions of the Korean Constitutional Court, Vol. 9, No. 2, 548, 571.

  82. 82.

    Constitutional Court Decision 2002Hun-Ma518, October 30, 2003, Decisions of the Korean Constitutional Court, Vol. 15, No. 2 Part 2, 185, 208; Constitutional Court Decision 98Hun-Ma425, April 25, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 1, 351, 364–366.

  83. 83.

    Constitutional Court Decision 98Hun-Ma425, 99Hun-Ma170·498 (Consolidated), April 25, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 1, 351, 364–366. For a sketch of this case in English, see also, Constitutional Court (2008), pp. 238–240.

  84. 84.

    Constitutional Court Decision 98Hun-Ma425, April 25, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 1, 351, 353–354.

  85. 85.

    Constitutional Court Decision 2002Hun-Ga1, August 26, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 2, Part 1, 141.

  86. 86.

    Constitutional Court Decision 2000Hun-Ma159, September 27, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 353, 360.

  87. 87.

    Constitutional Court Decision 2000Hun-Ma159, September 27, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 353, 361.

  88. 88.

    Constitutional Court Decision 89Hun-Ma163, September 16, 1991, Decisions of the Korean Constitutional Court, Vol. 3, 518, 524; Constitutional Court Decision 95Hun-Ga16, April 30, 1998, Decisions of the Korean Constitutional Court, Vol. 10, No.1, 327, 338.

  89. 89.

    E.g. Constitutional Court Decision 93Hun-Ga13, 91Hun-Ba10 (Consolidated), October 4, 1996, Decisions of the Korean Constitutional Court, Vol. 8, No. 2, 212, 225 (concerning the Korea Public Performance Ethics Committee); Constitutional Court Decision 2000Hun-Ga9, August 30, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 2, 134, 150–151 (concerning the Korea Media Rating Board); Constitutional Court Decision 99Hun-Ga1, September 16, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 2, 245, 253–258 (concerning the Korea Performance Arts Promotion Council, specifically for video works).

  90. 90.

    Constitutional Court Decision 92Hun-Ma177,199 (Consolidated), July 21, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 112, 125.

  91. 91.

    Constitutional Court Decision 88Hun-Ga7, January 25, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 1, 2.

  92. 92.

    Constitutional Court Decision 89Hun-Ga 37·96 (Consolidated), May 24, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 48, 54; Constitutional Court Decision 90Hun-Ba27through34, 36through42, 44through46, 92Hun-Ba15(Consolidated), April 28, 1992, Decisions of the Korean Constitutional Court, Vol. 4, 255, 271; Constitutional Court Decision 91Hun-Ga3, February 24, 1994, Decisions of the Korean Constitutional Court, Vol. 6, No. 1, 21, 33.

  93. 93.

    Constitutional Court Decision 98Hun-Ma363, December 23, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 2, 770. See also Kim J (2010a), p.131.

  94. 94.

    Constitutional Court Decision 2000Hun-Ma25, February 22, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 1, 386, 404–405; Kim J (2010a), p.131.

  95. 95.

    Constitutional Court Decision 88Hun-Ga13, December 22, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 367.

  96. 96.

    Article 23(1) of the Constitution provides that “The property rights of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Act.” (Emphasis added).

  97. 97.

    Constitutional Court Decision 92Hun-Ba20, July 29, 1993, Decisions of the Korean Constitutional Court, Vol. 5, No. 2, 44.

  98. 98.

    Constitutional Court Decision 89Hun-Ma214, 90Hun-Ba16, 97Hun-Ba78 (Consolidated), Decisions of the Korean Constitutional Court, Vol. 10, No. 2, 927. Where any unreasonable restriction on private property causes unusual burden on the owner thereof, compensation must be accompanied to it on the ground of the prohibition of excessive restriction or proportionality principle based upon Article 37(2) of the Constitution as well as the rule of law. According to the KCC, the nature of compensation in this regard is different from just compensation required for expropriation or takings for public necessity by Article 23(3). While the latter requires a full, pecuniary compensation, the former does not. In the jurisprudence of the Court, compensation based upon Article 23(1) and (2) should not be confined to pecuniary compensation so that legislature may wield wide discretion in determining in what form of compensation is desirable.

  99. 99.

    E.g., Constitutional Court Decision 89Hun-Ma214, 90Hun-Ba16, 97Hun-Ba78 (Consolidated), December 24, 1998, Decisions of the Korean Constitutional Court, Vol. 10, No. 2, 927, 956–957.

  100. 100.

    Thus, the right to political participation here needs to be differentiated from a political liberty in the sense that although it can be exercised in relation to political process like elections, it’s focus is not directly given to the conduct of voting or holding public office but to a form of expressive conduct, for example, the freedom of political speech guaranteed as a sort of civil liberty.

  101. 101.

    Constitutional Court Decision 88Hun-Ga6, September 8, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 199, 208.

  102. 102.

    Constitutional Court Decision 2004Hun-Ma644, 2005Hun-Ma360 (Consolidated), June 28, 2007, Decisions of the Korean Constitutional Court, Vol. 19, No. 1, 859, 873–874.

  103. 103.

    Constitutional Court Decision 2002Hun-Ma411, March 25, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 468, 479–482.

  104. 104.

    Constitutional Court Decision 2002Hun-Ma411, March 25, 2004, Decisions of the Korean Constitutional Court, Vol. 16, No. 1, 468, 483–490.

  105. 105.

    Constitutional Court Decision 96Hun-Ma89, June 26, 1997, Decisions of the Korean Constitutional Court, Vol. 9, No. 1, 674, 678–683; Constitutional Court Decision 2000Hun-Ma111, June 28, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 1, 1418, 1426–1429.

  106. 106.

    Constitutional Court Decision 2004Hun-Ma644, 2005Hun-Ma360 (Consolidated), June 28, 2007, Decisions of the Korean Constitutional Court, Vol. 19, No. 1, 859, 875–879. For an English summary of this case, see the Constitutional Court (2008), pp. 332–335.

  107. 107.

    Constitutional Court Decision 2000Hun-Ma283·778 (Consolidated), March 28, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 1, 211, 223.

  108. 108.

    Constitutional Court Decision 2000Hun-Ma735, June 28, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 1, 1431, 1439.

  109. 109.

    Constitutional Court Decision 88Hun-Ga6, September 8, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 199, 214; Constitutional Court Decision 99Hun-Ma112·137 (Consolidated), December 14, 2000, Decisions of the Korean Constitutional Court, Vol. 12, No. 2, 399, 409; Constitutional Court Decision 2000Hun-Ma25, February 22, 2001, Decisions of the Korean Constitutional Court, Vol. 13, No. 1, 386, 413.

  110. 110.

    Constitutional Court Decision 99Hun-Ma135, December 23, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No.2, 800, 811.

  111. 111.

    Constitutional Court Decision 95Hun-Ba3, December 28, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 841; Constitutional Court Decision 94Hun-Ma118, June 13, 1996, Decisions of the Korean Constitutional Court, Vol. 8, No. 1, 500; Constitutional Court Decision 2005Hun-Ba28, May 26, 2005.

  112. 112.

    Constitutional Court Decision 2001Hun-Ga18, February 28, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 1, 98, 103.

  113. 113.

    Constitutional Court Decision 2005Hun-Ma971, December 26, 2008, Decisions of the Korean Constitutional Court, Vol. 20, No. 2, Part 2, 666.

  114. 114.

    Constitutional Court Decision 93Hun-Ga14, July 21, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 1, 30–31; Constitutional Court Decision 97Hun-Ga10, 97Hun-Ba42, 97Hun-Ma354 (Consolidated), February 27, 1998, Decisions of the Korean Constitutional Court, Vol. 10, No. 1, 15, 30; Constitutional Court Decision 98Hun-Ma216, Decisions of the Korean Constitutional Court, Vol. 12, No. 1, 622, 647.

  115. 115.

    For the summaries of these cases in English, see the Constitutional Court (2008), pp. 414–438.

  116. 116.

    Constitutional Court Decision 95Hun-Ga6 through 13 (Consolidated), July 16, 1997, Decisions of the Korean Constitutional Court, Vol. 9, No. 2, 1–2, 11–18.

  117. 117.

    Constitutional Court Decision 97Hun-Ga12, August 31, 2000, Decisions of the Korean Constitutional Court, Vol. 12, No. 2, 167, 182–183.

  118. 118.

    Constitutional Court Decision 2001Hun-Ga9·10·11·12·13·14·15, 2004Hun-Ga5 (Consolidated), February 3, 2005, Decisions of the Korean Constitutional Court, Vol. 17, No. 1, 1, 18–25.

  119. 119.

    Constitutional Court Decision 2003Hun-Ga5, December 22, 2005, Decisions of the Korean Constitutional Court, Vol. 17, No. 2, 544.

  120. 120.

    Constitutional Court Decision 2004Hun-Ba26, February 24, 2005, Decisions of the Korean Constitutional Court, Vol. 17, No. 1, 242, 250.

  121. 121.

    Constitutional Court Decision 91Hun-Ma80, December 28, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 851, 868; Constitutional Court Decision 2002Hun-Ba45, November 28, 2002, Decisions of the Korean Constitutional Court, Vol. 14, No. 2, 704, 710.

  122. 122.

    Constitutional Court Decision 98Hun-Ba33, December 23, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 2, 732, 746; Constitutional Court Decision 2002Hun-Ma484, June 26, 2003, Decisions of the Korean Constitutional Court, Vol. 15, No. 1, 802, 807–808.

  123. 123.

    Constitutional Court Decision 98Hun-Ba33, December 23, 1999, Decisions of the Korean Constitutional Court, Vol. 11, No. 2, 732, 746.

  124. 124.

    E.g., Constitutional Court Decision 96Hun-Ga4, 97Hun-Ga6·7, 95Hun-Ba58 (Consolidated), May 28, 1998, Decisions of the Korean Constitutional Court, Vol. 10, No. 1, 533, 534.

  125. 125.

    E.g., Constitutional Court Decision 88Hun-Ga13, December 22, 1989, Decisions of the Korean Constitutional Court, Vol. 1, 377.

  126. 126.

    E.g., Constitutional Court Decision 94Hun-Ga2, November 30, 1995, Decisions of the Korean Constitutional Court, Vol. 7, No. 2, 544.

  127. 127.

    Cf. Kwon Y-s (2006), pp. 897–898.

  128. 128.

    See Kim J (2006).

  129. 129.

    The Constitutional Court confirmed this in the Local Soju Compulsory Purchase System case. The Court ruled that, while the primary aim of regional economic development stated in Article 123 is the reduction of economic disparity among regions, there is no concrete regional disparity calling for such adjustment under the Liquor Tax Act seeking to maintain one soju maker in every province (Constitutional Court Decision 96Hun-Ga18, December 26, 1996, Decisions of the Korean Constitutional Court, Vol. 8, No. 2, 680).

  130. 130.

    “Abstract norm control” is a system of constitutional review as opposed to “concrete norm control” in that even if there is no specific cases or controversies in the judicial proceedings, the Constitutional Court may review whether laws governing such hypothetical cases are compatible with the Constitution upon the request of designated applicants such as the President or members of the National Assembly.

  131. 131.

    For the rough examination of the Final Report above from this point of view, see Kim J (2010c), pp. 125–157.

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    Jongcheol Kim

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    Kim, J. (2013). Constitutional Law. In: Introduction to Korean Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31689-0_2

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