Constitution of South Korea

The Constitution of the Republic of Korea (South Korea) is its fundamental law. Promulgated on July 17th, 1948, it was revised for the last time in 1987.

History

The Korean Constitution of 1948, the first in the history of South Korea, was promulgated under the control of the president. It was modified or almost completely rewritten nine times. In 1919, the temporary government of the Republic of Korea had promulgated a first constitution, but it had not been applied because of Japanese occupation.

The Constitution of 1948 was modified for the first time in 1952, before the re-election of the president Syngman Rhee, by envisaging direct presidential elections and a bicameral Parliament. The constitutional revision was adopted in spite of irregularities of procedure and after rough discussions. In 1954, Rhee again passed from force an amendment, limiting the number of re-elections to which it was subjected and underlining the capitalist development model of the country.

Vis-a-vis the many protests against these amendments, the second Republic of Korea was inaugurated by the Constitution of 1960, more democratic, which created the Council of Ministers, a bicameral Parliament, an electoral commission, as well as a constitutional commission. It also envisaged elections for the judges of the supreme courts and the governors of province, as well as the guarantee of the individual freedoms based on the natural right.

With the coup d'etat of 1961 of Park Chung-hee, the revision of 1960 was cancelled, and in 1962, the Third Republic of Korea was instituted, the adopted amendments taking as a starting point the American Constitution, so in particular ensuring an examination has minimum constitionnality of the laws. In 1972, Park reinforced its authority by promulgating the Constitution of the Fourth Republic, called Constitution Yusin, by removing the limitation of the number of presidential mandates and by operating a centralization of the capacity.

After the assassination of Park in 1979, the Fifth Republic of the Republic of Korea was instituted by the Constitution of 1980, under the mandate of the president Chun Doo-hwan: the capacities of the president, elected official by the indirect suffrage, decrease, the Parliament is monocaméral and the Council of Ministers is established.

Following the demonstrations in favor of the democracy of the year 1987, the Constitution of 1988 created the Sixth Republic. The law of constitutional revision was adopted by the National Assembly the October 12th 1987, then approved by referendum by 93% of the citizens on October 28th, before coming into effect the February 25th 1988, concomitantly with the taking of of Roh Tae-woo.

Principles provisions of the Constitution

The constitution declares South Korea is a democratic republic, whose territory is composed of the “Korean Péninsule and the adjacent islands,” and that the “Republic of Korea will have to seek the reunification and to formulate and implement a peaceful policy of reunification based on the principles of freedom and the democracy. ”

Executive powers, legislature and legal

Being composed of a preamble, of 130 articles, and additional provisions, the Constitution provides that the president of the Republic directs the executive and appoints the Prime Minister, establishes a Parliament monocaméral, and defines competences of the bodies of the judicial power, that are the Constitutional court of Korea, Supreme court and jurisdictions of lower row.

The president is elected by the universal direct suffrage, for five years, and is not re-eligible. The Prime Minister is named by the president with the agreement of the National Assembly. Although the Constitution does not envisage it, the president also names the members of the government, following the use introduced in this direction by the president Kim Dae-jung.

The National Assembly includes/understands at least of 200 deputies (their current number is of 299) elected for a four years mandate.

The first judge of the Supreme court, which can include/understand to 13 other judges named by the president on a proposal from the first judge with the agreement of the National Assembly. Each judge of the Supreme court exerts his functions during six years.

Rights and individual freedoms

The individuals cannot be punished, compelled with precautionary measures restricting their freedom, nor subjected to the forced labor, except in the cases envisaged by the law. Those which are held or stopped must know the reason for their detention or of their arrest, they are entitled to a lawyer and their family must be informed of their situation. The warrants for arrest must be delivered by the judge “according to the adapted procedures,” and the people committal for trial can make call of an unjustified arrest in certain cases.

However, the individual rights are determined by other constitutional provisions and preexistent laws with the Constitution of 1988, including the Loi of national security which limits the rights of recourse in the political arena.

Economic and social provisions

In article 119, stable and balanced growth rates, a “distribution of income adapted,” and the prevention of the “economic abuse of power” are explicitly enumerated among the goals of the government.

With the same article, the objective of regulation of the economy (“to democratize the economy by the harmony between the economic agents”) reflects the strong pregnancy of the traditional Korean values, as well as the close connections between policy and economy. Article 125 lays out that the foreign trade made up a strategic sector which must be encouraged, controlled and coordinated by the State.

The constitution proclaims the right and the duty to work, which requires a regulation on the minimum wages and the work conditions. The workmen have the right to form independent associations, to lead collective bargains and to carry out class action suits.

Constitutional court

Following the constitutional revision of 1987, the Constitutional court was established in September 1988. Based on the European model, it is a specialized court which judges constitutionality of the laws, referee the conflicts of competence between the governmental authorities, educated the complaints for attack with the Constitution deposited by the citizens, decides in the event of procedure of Impeachment and pronounces the dissolution of the political parties. The former Constitutions envisaged various modes of control of the constitutionality of the laws, but the judicial power did not have independence necessary to the exercise of these competences.

The nine judges of the Constitutional court exert their functions during a six years renewable mandate. In December 2004, the Constitutional court had declared 418 laws unconstitutional and had revoked 214 government decisions.

Sources and references

Internal bonds

Political History of South Korea
of South Korea
Constitution

External references and bonds

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