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Constitution of South Korea

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The Constitution of the Republic of Korea (Korean: 대한민국 헌법) is the supreme law of South Korea. It was promulgated on July 17, 1948, and last revised on October 29, 1987.[2]

Constitution of the
Republic of Korea
Preamble of the first version of the Constitution
Overview
Original title대한민국 헌법 (Hangul)
大韓民國憲法 (Hanja)
JurisdictionKorea
RatifiedJuly 12, 1948
Date effectiveJuly 17, 1948
SystemUnitary presidential republic
Government structure
BranchesThree
Head of statePresident
ChambersUnicameral
(National Assembly)
ExecutivePresident and State Council
JudiciarySupreme Court
Constitutional Court
FederalismUnitary
Electoral collegeNo
History
First legislatureMay 10, 1948[1]
First executiveJuly 24, 1948
First courtAugust 5, 1948
Amendments9
Last amendedOctober 29, 1987
LocationWar Memorial of Korea, Seoul
Commissioned byConstituent National Assembly
Author(s)Jo So-ang
SignatoriesSpeaker Syngman Rhee, in Seoul
SupersedesProvisional Constitution of the Republic of Korea [ko]
Full text
Constitution of South Korea at Wikisource
Constitution of the Republic of Korea
Hangul
대한민국 헌법
Hanja
大韓民國憲法
Revised RomanizationDaehan Minguk Heonbeop
McCune–ReischauerTaehan Minguk Hŏnpŏp

Background

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The Provisional Charter of Korea

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See also: Korean Provisional Government Legitimism

The preamble of the Constitution of South Korea states that the document was established in the spirit of "upholding the cause of the Provisional Republic of Korea Government",[3] the Korean government exiled after the imposition of Japanese colonial rule of Korea. As such, the founding document of the provisional government—The Provisional Charter of Korea—serves as the basis for the current constitution.[4] Promulgated in 1919, the charter first gave the country the "Republic of Korea" name and laid out the ideas forming the backbone of later South Korean constitutions.

These ten articles are:[5]

  1. The Republic of Korea is a democratic republic.
  2. The Provisional Government governs the Republic of Korea under resolutions of the Provisional Assembly.
  3. All citizens of the Republic of Korea are equal without regard for gender, wealth and stratum.
  4. All citizens of the Republic of Korea have freedom of religion, press, publication, association, assembly, petition and personal property.
  5. Qualifying citizens of the Republic of Korea have a right to vote and to be elected.
  6. Citizens of the Republic of Korea have duties of education, taxation and military service.
  7. The Republic of Korea will join the League of Nations in order to exert its founding spirit in the world and to contribute to human culture and peace by the will of God.
  8. The Republic of Korea will extend benevolent treatment to the former imperial family.
  9. Capital punishment, corporal punishment and licensed prostitution are forbidden.
  10. The Provisional Government will convene the National Assembly within 10 years after restoration of territory.

History

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South Korea's first 1948 Constitution, drafted by Dr. Chin-O Yu (Korean: 유진오; Hanja: 兪鎭午), framed a presidential system mixed with a parliamentary system. It gave the president to act as the head of state, be elected indirectly by the National Assembly, and share executive power with the cabinet.[6] The Constitutional Charter of the Provisional Government of the Republic of Korea of 1919 became the forerunner of 1948 Constitution.[7]

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.

Rhee was overthrown in 1960 following widespread protests against his increasingly authoritarian rule. Partly in response to Rhee's abuses, the Second Republic turned to a parliamentary system. The 1960 Constitution provided for a figurehead president, a bicameral legislature, a cabinet headed by a prime minister, an election commission, and a constitutional court. 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. The document returned to a presidential system. It had a number of similarities to the United States Constitution, such as presidential elections held by the National Assembly in the event of a tie and carrying out judicial review by the ordinary Supreme Court instead of a specialized Constitutional Court, though in practice military government would continue in some form until democratization. In 1972, Park extended his rule with the Fourth Republic's constitution, called the Yushin 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. He was limited to a single seven-year term, with no possibility of reelection. As with the Yushin Constitution, it provided for a presidential electoral college and a semi-presidential system of government. Critically, however, the President retained the right to suspend civil liberties and rule by decree.

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. The president's powers were curtailed and the constitutional court was restored.

Amendment of the Constitution of South Korea[8]

Amendment Date Amendment range President
1st 1948-07-17 Established Syngman Rhee
2nd 1952-07-07 Partial Syngman Rhee
3rd 1954-11-29 Partial Syngman Rhee
4th 1960-06-15 Partial Syngman Rhee
5th 1960-11-29 Partial Yun Posun
6th 1962-12-26 Whole Park Chung Hee
7th 1969-10-21 Partial Park Chung Hee
8th 1972-12-27 Whole Park Chung Hee
9th 1980-10-27 Whole Chun Doo-hwan
10th 1987-10-29 Whole Chun Doo-hwan

Succession of spirit

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We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice, having assumed the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice.

Preamble to the contemporary Constitution of South Korea (10th Constitution, 9th amendment)[9]

The spirit of April Nineteenth and March First Movement is stipulated in the preamble of the Constitution of South Korea. However, it took a long time to be established. The contents of the April Revolution were removed on the fifth amendment, and these were included in the preamble on the sixth amendment, identified with May 16 coup. After the ninth amendment, the spirit of the April Revolution was excepted from the preamble, and it was included for the "Resistance ideology for protection of democratic constitution" on the 10th amendment.[10]

Structure

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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.

In detail, the Constitution is composed of ten Chapters.[9] Chapter I provides general constitutional ground for the Republic of Korea itself and citizens. Chapter II provides basic rights for individuals. Other following Chapters from III to VII describe constitutional institutions constituting national governance structure of the Republic of Korea; for example, parliament as the National Assembly (Chapter III), executive branch as the President and the Prime Minister (Chapter IV), ordinary courts and military courts including the Supreme Court of Korea (Chapter V), constitutional court as Constitutional Court of Korea (Chapter VI), independent electoral management institution as the National Election Commission (Chapter VII). Also, Chapter VIII provides constitutional ground for local governments and their autonomy. Chapter IX address general provisions for economic system of the Republic of Korea. Finally, Chapter X stipulates procedure for amendment on the Constitution.

The President is elected by a first-past-the-post voting system and limited to a single five-year term. The Prime Minister is appointed by the President with the consent of the National Assembly. The President also appoints members of the State Council, the Cabinet, on the advice of the Prime Minister, as well as Cabinet Ministers on the advice of the Prime Minister from among the members of the State Council.

The National Assembly consists of at least 200 (presently 300) members elected to four-year terms. The Supreme Court's chief justice and President of the Constitutional Court are appointed by the President of South Korea with consent of the National Assembly. Supreme Court Justices other than the Chief Justice (exact number is set by statute) are appointed by the President of South Korea on the recommendation of the chief justice with the approval of the National Assembly. Also, Constitutional Court Justices other than the President of the Court are appointed by the President of South Korea upon nomination of equal portions from the National Assembly, the Supreme Court Chief Justice and themselves. The President of the Constitutional Court of South Korea serves a six-year term.

The Constitution declares South Korea a "democratic republic" (took from Article 1 of Constitutional Charter of the Provisional Government of the Republic of Korea of 1919),[7] its territory consisting of "the Korean Peninsula and its adjacent islands," and that "The 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" are in Korean, but the direct translation of the Korean word used in the constitution "Korean: 자유민주적 기본질서" would be liberal democracy.

Individual rights

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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.

Economic provisions

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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.

Political neutrality

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Political neutrality is a constitutional convention which provides that public servants should avoid activities likely to impair, or seem to impair, their political impartiality or the political impartiality of the public service.[11] The political neutrality of South Korea's Constitution is guaranteed in the area of military, administration, and education. In the form of the guarantee of 'political neutrality', the constitution provides an objective legal system to guarantee political neutrality as an essential element of the system, unlike the form of guarantee of basic rights.[12]

Military

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Article 5 (2) of the Constitution stipulates that "the ROK military shall fulfill the sacred duty of national security and defense of the nation, and its political neutrality shall be obeyed" .

Education

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Education promotes the potential of individuals so that individuals can develop their personality in each area of life. In view of the important functions of education, Article 31(6) of the Constitution stipulates to specify in the law about the basic laws and regulations about the education system and its operation, education finances and the status of teachers.

Administration

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Political neutrality of public officials is specified in the law. Article 6(2) of the Constitution stipulates that "The status and political neutrality of public officials shall be guaranteed by law". Also, Article 9(1) of the Public Service Elections act regulates that Public servants or any other person (including any organization or organizations) that is required to be in a political neutrality shall not engage in any unfair influence on the election or otherwise act on the election results. Article 65 of the Public Officials Act (Prohibition of Political Movement) Section 2 regulates that Public officials shall not engage in the following activities to support or oppose a specific political party or a particular person in an election. 1. To make an invitation to vote or not 2. Pray, preside, or recommend the signatory movement. 3. To publish or post documents or books to public facilities 4. To make a donation recruitment, or to use public funds 5. To encourage others to join or not to join a political party or other political organizations

Constitutional Court

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Main article: Constitutional Court of Korea

Following the 1987 revision, the Constitutional Court was established in September 1988 by Chapter VI of the Constitution. Though earlier versions of the Constitution provided for various forms of judicial review, the judiciary's lack of independence at the time prevented it from exercising this function. This historical background led drafters of current Constitution of South Korea to greatly empower the Constitutional Court.

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Articles 111 through 113 of the Constitution of the Republic of Korea refer to the Constitutional Court.[9]

  • Article 111 : This article stipulates the enforcement of the Constitutional Court and the qualifications and appointments of the Constitutional Court Judges.
    • Article 111(1) : Paragraph (1) of Article 111 sets the Court's jurisdiction, as Judicial review on constitutionality of statute, review of all Impeachments, decision on Prohibition and Dissolution of political parties, competence dispute about demarcation of power among central government agencies and local governments, and adjudication of constitutional complaint. For more information, see jurisdiction.
    • Article 111(2), (3) : Paragraph (2) and (3) of Article 111 sets qualification and appointment process of Justices of the Court. Number of Constitutional Court Justices are exactly stipulated as nine, according to paragraph (2) of Article 111. For more information, see Justices of the Court.
    • Article 111(4) : This paragraph sets appointment process for the President of the Court. For more information, see the President of the Constitutional Court of Korea.
  • Article 112 : This article stipulates term and ethical obligations of Constitutional Court Justices and guarantee of their status.
    • Article 112(1) : Paragraph (1) sets term of the Constitutional Court Justices as renewable six years.
    • Article 112(2) : Paragraph (2) specifies ethical obligations of the Constitutional Court Justices. To protect political neutrality, they should not join any political party, nor shall participate in political activities.
    • Article 112(3) : Paragraph (3) guarantees that Constitutional Court Justices cannot be removed at will from their office. Unlike Justices at the Supreme Court of Korea, Constitutional Court Justices enjoy more reinforced guarantee of status since they cannot be ordered to retire due to unbearable mental or physical impairment. For more information, see article 106(2) of the Constitution[9] and the tenure of Supreme Court Justices.
  • Article 113 : This article provides constitutional ground for quorum and organizational autonomy of the Court.
    • Article 113(1) : According to the paragraph (1) of the article, to make decision upholding requests for the Adjudication, or to change precedent, the Court needs votes from at least six Justices among quorum of at least seven Justices. For more information, see Quorum of the Court.
    • Article 113(2) : This paragraph empowers the Court to enact sub statutory rules for internal issues, including specific process of adjudication and other organizational issues inside the Court. As one of highest constitutional institution of South Korea,[13] the Court enjoys organization autonomy from other constitutional institutions.
    • Article 113(3) : This paragraph is constitutional ground for statute called 'Constitutional Court Act', which regulates and specifies exact boundary of jurisdiction, autonomy and power of the Court.[14]

See also

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References

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  1. ^ Setting the Stage Archived 16 July 2007 at the Wayback Machine
  2. ^ "Constitutional history of Republic of Korea". ConstitutionNet. Retrieved 2022-05-15.
  3. ^ "Korea (Republic of)'s Constitution of 1948 with Amendments through 1987" (PDF). Constitute Project.
  4. ^ Reexamining Political Participation in Rousseau's Political Thought: Does Citizens' Political Participation Include Public Discussions and Debates edited by KANG Jung In
  5. ^ 대한민국임시헌장. www.law.go.kr (in Korean). Korea Ministry of Government Legislation.
  6. ^ Public Administration and Policy in Korea: Its Evolution and Challenges edited by Keun Namkoong
  7. ^ a b Republicanism in Northeast Asia edited by Jun-Hyeok Kwak, Leigh Jenco
  8. ^ "National Law Information Center_Constitution of South Korea". Archived from the original on 2015-09-28.
  9. ^ a b c d "Constitution of the Republic of Korea". Korea Legislation Research Institute. Retrieved 2022-05-16.
  10. ^ The History of Korean Constitution in terms of its Spirit: A Study on the Introduction of the April 19 Uprising into the Preamble to the Constitution edited by Hee Kyung Suh
  11. ^ Sossin, Lorne (2006-02-01). "Defining Boundaries: The Constitutional Argument for Bureaucratic Independence and its Implication for the Accountability of the Public Service". Sponsorship Affair (Gomery Inquiry). Rochester, NY. SSRN 1911245.
  12. ^ 류, 시조 (February 2015). 한국 헌법상의 정치적 중립성에 관한 연구. 공법학연구 제 16권 제 1호: 49–70.
  13. ^ "Page 127 of 16-2(B) KCCR 1, 2004Hun-Ma554, 566(consolidated), October 21, 2004". Constitutional Court of Korea. Retrieved 2022-05-08.
  14. ^ "Constitutional Court Act". Korea Legislation Research Institute. Retrieved 2022-05-08.
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