Kim, Jongcheol --- "The Structure and Basic Principles of Constitutional Adjudication in the Republic of Korea" [2010] ELECD 256; in Cho, Kuk (ed), "Litigation in Korea" (Edward Elgar Publishing, 2010)

Book Title: Litigation in Korea

Editor(s): Cho, Kuk

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443396

Section: Chapter 6

Section Title: The Structure and Basic Principles of Constitutional Adjudication in the Republic of Korea

Author(s): Kim, Jongcheol

Number of pages: 20

Extract:

6. The structure and basic principles of
constitutional adjudication in the
Republic of Korea
Jongcheol Kim

I. INTRODUCTION
Modern constitutionalism posits the political doctrine that political power
should be authorized and bound by a constitution enacted according to the will
of the people and that people's fundamental liberties and rights enshrined in
the constitution should be protected (Lane 1996, p.17). This doctrine has
become ideologically dominant in most Western countries since the 18th
century. In 1948, when a three-year long period of American military rule
came to an end, Koreans, who had never experienced Western-style civil revo-
lution throughout their history, had the opportunity to establish a republican
form of government adopting the principal tenets of constitutionalism.1 Since
then, at least on the surface, Korea has been a constitutionalist state as it has
maintained a written constitution confirming popular sovereignty and unalien-
able human rights. However, one would be hard pressed to make a convincing
argument that the reality of Korea has matched this superficial appearance. The
history of modern Korea has shown that the core components of constitutional-
ism, namely the protection of human rights, popular sovereignty, and the sepa-
ration of powers, have never been properly put into practice. The provisions of
the Korean constitutions since the First Republic (1948­1960) were merely
`nominal' as they were continuously ignored by authoritarian regimes. However,
the Korean people's consistent struggle for democracy encountered a watershed
in the June 1987 Uprising, leading to the ninth ...