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"Judicial review Korea (South)"
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The Judicial Enforcement of Socio-Economic Rights in South Korea
Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.
Journal Article
The Emergence of East Asian Constitutionalism: Features in Comparison
Vibrant constitutional democracies have taken hold in East Asia. Scant attention, however, has been paid to the ways in which constitutionalism has emerged and developed into distinctive forms in that region. This Article seeks to analyze and to present an overview of constitutional developments in Japan, South Korea and Taiwan after World War II. By comparing the three countries, the authors identify a number of common features which their constitutional environments share. These include an instrumental approach to constitutional state building, institutional continuity, a reactive and cautious style of judicial review, and adoption of a wide range of rights in line with social and political progress. These features do not merely mirror standard (Western) constitutionalism, nor do they fit neatly into the so-called Asian values discourse. They also do not merely indicate global transitional constitutionalism. Instead, the emergence of an East Asian style sheds a new light on contemporary constitutionalism more generally and deserves a central place in comparative constitutional studies.
Journal Article
Political Functions and Dilemma of the Korean Constitutional Court
In the past decades, the Korean Constitutional Court (KCC) has become one of main actors in political process. It has been invited by various political, social, and economic forces to make important decisions. This study, first, carries out general analysis on the political roles of the KCC. That is, this study tries to categorize a lot of its decisions into three domains: decisions concerning pursuit of institutional self-interest and expansion of its authority; decisions on conflicting issues of the Korean society; decisions on political rules of game. Second, it examines various flaws, contradictions, and vacuums regarding the Constitutional Court system imbedded in the Korean Constitution. Finally, it concludes that, because of the incongruity between increasingly important roles the KCC has come to play in the Korean society and flaws of the Korean constitutional system regarding the KCC, and unwillingness or incapacity of politicians to reform the constitutional system, constitutional democracy of Korea has fallen into a dilemma.
Journal Article
The Judicialization of Politics in Asia
Over the last two decades courts have become major players in the political landscape in Asia. This book assesses what is driving this apparent trend toward judicialization in the region. It looks at the variations within the judicialization trend, and how these variations affect political practice and policy outcomes. The book goes on to examine how this new trend is affecting aspects of the rule of law, democratic governance and state-society relations. It investigates how the experiences in Asia add to the debate on the judicialization of politics globally; in particular how judicial behaviour in Asia differs from that in the West, and the implications of the differences on the theoretical debate.
eBook
Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan
This paper documents the recent emergence of constitutional review of legislative and administrative action in Korea and Taiwan, two East Asian countries seen to be historically resistant to notions of judicial activism and constitutional constraint. It argues that the ability to draw from foreign legal traditions, especially those of the United States and Germany, empowered judges in these countries and therefore helped to alter the structure of public law away from executive-centered approaches of the past. This is consistent with viewing judicial review as essentially a foreign transplant. Nevertheless, the institution of judicial review has some compatibilities with Confucian legal tradition, a point that has implications for how we think about institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that constitutional constraint should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation.
Journal Article
CONSTITUTIONALISM ON TRIAL IN SOUTH KOREA
Chaihark and Kim discuss the trial of constitutionalism in South Korea. The Constitutional Court is positioning itself as the ultimate defender of the constitution, while casting the president as an unpredictable element in the constitutional order.
Journal Article
The Judicial Politics of Enmity: A Case Study of the Constitutional Court of Korea's Jurisprudence Since 1988
Among the countries which have experienced a political transition away from authoritarianism in the 1980s, South Korea is usually considered as a model of both democracy and judicial review. Relying on an interpretive reading of jurisprudence, the present research however uncovers the double-edged way in which the Constitutional Court of Korea has discharged its role as guardian of the constitution. A critical analysis of constitutional jurisprudence indeed reveals how the court’s commitment to define and defend the post-transition constitutional order has translated into both liberal and illiberal outcomes. This ambivalent dimension of the court’s role has unfolded as the institution came to intervene in the major dispute opposing the state and parts of civil society after the 1987 change of regime: reshaping the contours of enmity in the post-transitional period. Through the contentious issue of enmity, what has been put at stake in the constitutional arena is the very challenge of delineating the boundaries of inclusion and exclusion in South Korean democracy. In light of this task, constitutional justice has imposed itself as a paradoxical site, where the post-transitional disagreement about what counts as ‘‘national’’ and ‘‘anti-national’’ has been both staged and interrupted.
Dissertation
