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Constitution of the Republic of Korea

Constitution of the Republic of Korea

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The Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 of the Republic of Korea
(South Korea; ) is its basic law. It was promulgated on July 17, 1948, and last revised in 1987.

History


South Korea's first 1948 Constitution, drafted by Doctor Yu Jin-oh, provided for central control under the President. It was originally based on the Weimar system, in which the president was elected indirectly. 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
Provisional Government of the Republic of Korea
The Provisional Government of the Republic of Korea was the partially recognised government in exile of Korea, based in Shanghai, China, and later in Chongqing, during the Colonial Korea.-History:...

 promulgated a constitution of Korea, but it was ineffective in Colonial Korea
Korea under Japanese rule
Korea was under Japanese rule as part of Japan's 35-year imperialist expansion . Japanese rule ended in 1945 shortly after the Japanese defeat in World War II....

. See also: Division of Korea
Division of Korea
The division of Korea into North Korea and South Korea stems from the 1945 Allied victory in World War II, ending Japan's 35-year colonial rule of Korea. In a proposal opposed by nearly all Koreans, the United States and the Soviet Union agreed to temporarily occupy the country as a trusteeship...

.

The 1948 Constitution was first amended in 1952 ahead of President Syngman Rhee
Syngman Rhee
Syngman Rhee or Yi Seungman was the first president of South Korea. His presidency, from August 1948 to April 1960, remains controversial, affected by Cold War tensions on the Korean peninsula and elsewhere. Rhee was regarded as an anti-Communist and a strongman, and he led South Korea through the...

'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
Second Republic of South Korea
The Second Republic of South Korea was the government of South Korea for eight months in 1960 and 1961. It succeeded the First Republic, but was followed by a military government under the Supreme Council for National Reconstruction.-Establishment:...

 began with the more democratic 1960 Constitution, creating a cabinet, 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
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

-based individual rights.

With the 1961 "coup d’état" by Park Chung-hee
Park Chung-hee
Park Chung-hee was a Republic of Korea Army general and the leader of South Korea from 1961 to 1979. He seized power in a military coup and ruled until his assassination in 1979. He has been credited with the industrialization of the Republic of Korea through export-led growth...

, the 1960 version was nullified, and in 1962, the Third Republic
Third Republic of South Korea
The Third Republic of South Korea was the government of South Korea from 1963 to 1972. It was presented as a return to civilian rule after a period of rule by the military junta known as the Supreme Council for National Reconstruction which had overthrown the Second Republic of South Korea in 1961...

's Constitution was passed, with additional similarities to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, such as nominal judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 functions. In 1972, Park extended his rule with the Fourth Republic
Fourth Republic of South Korea
The Fourth Republic was the government of South Korea between 1972 and 1981, regulated by the Yushin Constitution adopted in October 1972 and confirmed in a referendum on 21 November 1972. From 1972 to 1979, power was monopolized by Park Chung Hee and his Democratic Republican Party under the...

 constitution, called the Yusin Constitution, providing for an indefinite presidential term and more centralized power.

After Park was assassinated in 1979, the Fifth Republic
Fifth Republic of South Korea
The Fifth Republic of South Korea was the government of South Korea from 1979 to 1987, replacing the Fourth Republic of South Korea. Throughout this period, the government was controlled by Chun Doo-hwan, a military colleague of the assassinated president Park Chung-hee. This period saw extensive...

 began with the 1980 Constitution under President Chun Doo-hwan
Chun Doo-hwan
Chun Doo-hwan was a ROK Army general and the President of South Korea from 1980 to 1988. Chun was sentenced to death in 1996 for his heavy-handed response to the Gwangju Democratization Movement, but later pardoned by President Kim Young-sam with the advice of then President-elect Kim Dae-jung,...

, providing for a somewhat weaker president, indirectly elected, a unicameral legislature, and a cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...

 system.

With the pro-democratic protests of 1987 (June Democracy Movement
June Democracy Movement
The June Democracy Movement was a nation-wide democracy movement in South Korea that generated mass protests from June 10 to June 29, 1987...

), the 1988 Constitution of the Sixth Republic
Sixth Republic of South Korea
The Sixth Republic of South Korea is the country's present-day government. It began in 1987, with the transfer of power from the authoritarian Fifth Republic of Chun Doo-hwan....

 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
Roh Tae-woo
Roh Tae-woo , is a former ROK Army general and politician. He was the 13th president of South Korea .Roh befriended Chun Doo-hwan while in high school in Daegu. In his younger life, Roh was a keen rugby union player....

 was inaugurated as president.

Structure


Consisting of a preamble, 130 articles, and supplementary provisions, the Constitution provides for an executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...

 headed by a president
President
A president is a leader of an organization, company, trade union, university, or country.Etymologically, a president is one who presides, who sits in leadership...

 and an appointed prime minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...

, a unicameral
Unicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...

 legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

 called the National Assembly
National Assembly of South Korea
The National Assembly of the Republic of Korea is a 299-member unicameral legislature. The latest general elections were held on April 9, 2008. Single-member constituencies comprise 245 of the National Assembly's seats, while the remaining 54 are allocated by proportional representation...

, and a judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

 consisting of the Constitutional Court, Supreme Court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex 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 299) 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. Each justice serves a six-year term.

The Constitution declares South Korea a democratic republic
Democratic republic
A democratic republic is a country which is both a republic and a democracy. However, in practice countries which describe themselves as democratic republics do not always hold free or fair elections. An example of this was the German Democratic Republic, a communist state commonly known as East...

, its territory consisting of "the Korean Peninsula
Korean Peninsula
The Korean Peninsula is a peninsula in East Asia. It extends southwards for about 684 miles from continental Asia into the Pacific Ocean and is surrounded by the Sea of Japan to the south, and the Yellow Sea to the west, the Korea Strait connecting the first two bodies of water.Until the end of...

 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) would be liberal democracy
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...

.

Individual rights


South Korean Bill of Rights (or fundamental right) is Constitution CHAPTER 2. RIGHTS AND DUTIES OF CITIZENS (Article 10 - 39)

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
National Security Act (South Korea)
The National Security Law is a South Korean law which has the avowed purpose "to restrict anti-state acts that endanger national security and to protect [the] nation's safety and its people's life and freedom."...

, which restricts due process rights in political offense cases

Economic provisions


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 state. http://www.oefre.unibe.ch/law/icl/ks__indx.html

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
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...

, and collective action.

Constitutional Court


Following the 1987 amendment, 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, impeachment
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....

s, and dissolution of political parties. Earlier constitutions provided for various forms of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

, 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. http://www.ccourt.go.kr/home/english/index.jsp

See also


  • History of South Korea
    History of South Korea
    The history of South Korea formally begins with the establishment of South Korea on 15 August 1948, although Syngman Rhee had declared the establishment in Seoul on 13 August....

  • Elections in South Korea
    Elections in South Korea
    Elections in South Korea are held on national level to select the President and the National Assembly.The president is directly elected for a single five-year term by plurality vote. The National Assembly has 299 members elected for a four-year term, 245 in single-seat constituencies and 54 members...

  • List of national constitutions
  • List of Korea-related topics
  • Constitutional economics
    Constitutional economics
    Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...

  • Constitutionalism
    Constitutionalism
    Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....

  • Rule according to higher law
    Rule according to higher law
    The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...


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