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Thursday, 31 July 2014

Korean Republic Constitution: Back to the Korean Law Basics.


"We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Government of the Republic of Korea born of the March First Independence Movement of 1919 and the democratic ideals of the April Revolution of 1960, having assumed the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice, humanitarianism and brotherly love, and to destroy all social vices and injustice, and to afford equal opportunities to every person and provide for the fullest development of individual capabilities in all fields, including political, economic, social and cultural life by further strengthening the free and democratic basic order conducive to private initiative and public harmony, and to help each person discharge those duties and responsibilities concomitant to freedoms and rights, and to elevate the quality of life for all citizens and contribute to lasting world peace and the common prosperity of mankind and thereby to ensure security, liberty and happiness for ourselves and our posterity forever, do hereby amend, through national referendum following a resolution by the National Assembly, the Constitution, ordained and established on July 12, 1948, and amended eight times subsequently."

The Constitution of Korean Republic (Hangul/Hanja/Romanization: 대한민국 헌법/大韓民國憲法/Daehan Min-guk Heonbeop) is its basic law. It was promulgated on July 17, 1948, and last revised (tenth version) on October 29, 1987.

South Korea's first 1948 Constitution, drafted by Doctor Yu Jin-oh (유진오), provided for central control under the President. It was originally based on the Weimar system. It has been amended nine times and almost fully rewritten five times (constitutions of 1960, 1962, 1972, 1980, 1987). In 1919, the Provisional Government of the Republic of Korea promulgated a constitution of Korea, but it was ineffective in Colonial Korea. See also: Division of Korea.

The 1948 Constitution was first amended in 1952 ahead of Syngman Rhee's re-election, providing for direct presidential elections and a bicameral legislature. It was passed with procedural irregularities after fierce debate. In 1954, Rhee again forced an amendment, removing term limits for himself and emphasizing a capitalistic economic model.

Facing widespread public protests against these moves, the Second Republic began with the more democratic 1960 Constitution, creating a cabinet, a figurehead president, a bicameral legislature, an election commission, and a constitutional commission. It also provided for elections for supreme court justices and provincial governors, as well as natural law-based individual rights.

With the May 16 coup of Park Chung-hee in 1961, the 1960 version was nullified, and in 1962, the Third Republic's Constitution was passed, with additional similarities to the United States Constitution, such as nominal judicial review functions. In 1972, Park extended his rule with the Fourth Republic constitution, called the Yusin Constitution, which gave the president sweeping (almost dictatorial) powers and permitted him to run for an unlimited number of six-year terms.

After Park was assassinated in 1979, the Fifth Republic began with the 1980 Constitution under President Chun Doo-hwan. The president's powers were curbed somewhat, and he was barred from reelection after his seven-year term. It also provided for a unicameral legislature and a cabinet system.

With the pro-democratic protests of 1987 (June Democracy Movement), the 1988 Constitution of the Sixth Republic was passed. The constitutional bill was passed by the National Assembly on October 12, 1987, and approved by 93 percent in a national referendum on October 28, taking effect on February 25, 1988, when Roh Tae-Woo was inaugurated as president.

Consisting of a preamble, 130 articles, and supplementary provisions, the Constitution provides for an executive branch headed by a president and an appointed prime minister, a unicameral legislature called the National Assembly, and a judiciary consisting of the Constitutional Court, Supreme Court and lower courts.

The President is elected by direct popular vote, and limited to a single five-year term. The Prime Minister is appointed by the President with the consent of the National Assembly. Although not required by the Constitution, the President also appoints members of the cabinet. President Kim Dae-jung changed to the cabinet system.

The National Assembly consists of at least 200 (presently 300) members elected to four-year terms. The Supreme Court's chief justice is appointed by the president and up to 13 other justices appointed by the president on recommendation of the chief justice with the approval of the National Assembly. The President serves a six-year term.

The Constitution declares South Korea a democratic republic, its territory consisting of "the Korean Peninsula and its adjacent islands," and that "Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy." There are disputes over what "freedom and democracy" means in Korea, but the direct translation of the Korean word used in the constitution (자유민주적 기본질서/自由民主的基本秩序/Jayu Minjujeok Gibon Jilseo) would be liberal democracy.

South Korean Bill of Rights (or fundamental right) is Constitution CHAPTER 2. RIGHTS AND DUTIES OF CITIZENS (4-687) Individuals may not be punished, placed under preventive restrictions, or subjected to involuntary labor except as provided by law. Those detained or arrested must be informed of the reason and of their right to an attorney, and family members must be informed. Warrants must be issued by a judge "through due procedures," and accused persons may sue for wrongful arrest in certain cases.

However, individual rights are qualified by other constitutional provisions and pre-existing laws, including the National Security Act, which restricts due process rights.

In Article 119, stable and balanced growth rates, "proper distribution of income", and preventing "abuse of economic power" are explicitly listed as goals of the government. The regulatory goal to "democratize the economy through harmony among economic agents" in the same article reflects the strong prevalence of traditional Korean values and the close relationship between politics and the economy. Article 125 designates foreign trade as a strategic area to be fostered, regulated and coordinated by the government.

The Constitution affirms both the right and the duty to work, requiring regulation of minimum wages and working conditions. Workers have the right to independent association, collective bargaining, and collective action.

Following the tenth amendment (1987), the Constitutional Court was established in September 1988. Based on the European model, it is a specialized court that determines the Constitutionality of laws, disputes between governmental entities, Constitutional complaints filed by individuals, impeachments, and dissolution of political parties. Earlier constitutions provided for various forms of judicial review, but the judiciary did not exercise actual independence. The Court's nine Justices serve six-year renewable terms. As of December 2004, the Court has declared 418 laws unconstitutional and revoked about 214 governmental actions.