Constitution of South Korea
Constitution of the Republic of Korea | ||
---|---|---|
Executive President and State Council | | |
Judiciary | Supreme Court Constitutional Court | |
Federalism | Unitary | |
Electoral college | No | |
History | ||
First legislature | May 10, 1948[1] | |
First executive | July 24, 1948 | |
First court | August 5, 1948 | |
Amendments | 9 | |
Last amended | October 29, 1987 | |
Location | War Memorial of Korea, Seoul | |
Commissioned by | Constituent National Assembly | |
Author(s) | Jo So-ang | |
Signatories | Speaker Syngman Rhee, in Seoul | |
Supersedes | Provisional Constitution of the Republic of Korea | |
Full text | ||
Constitution of South Korea at Wikisource |
South Korea portal |
The Constitution of the Republic of Korea (Korean: 대한민국 헌법; Hanja: 大韓民國憲法) is the supreme law of South Korea. It was promulgated on July 17, 1948, and last revised on October 29, 1987.[2]
Background
The Provisional Charter of Korea
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]
- The Republic of Korea is a democratic republic.
- The Provisional Government governs the Republic of Korea under resolutions of the Provisional Assembly.
- All citizens of the Republic of Korea are equal without regard for gender, wealth and stratum.
- All citizens of the Republic of Korea have freedom of religion, press, publication, association, assembly, petition and personal property.
- Qualifying citizens of the Republic of Korea have a right to vote and to be elected.
- Citizens of the Republic of Korea have duties of education, taxation and military service.
- 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.
- The Republic of Korea will extend benevolent treatment to the former imperial family.
- Capital punishment, corporal punishment and licensed prostitution are forbidden.
- The Provisional Government will convene the National Assembly within 10 years after restoration of territory.
History
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
With the
After Park was assassinated in 1979, the
With the pro-democratic protests of 1987 (
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
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 1st 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
Consisting of a preamble, 130 articles, and supplementary provisions, the Constitution provides for an
In detail, the Constitution is composed of ten Chapters.
The President is elected by a
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 "
Individual rights
South Korean Bill of Rights (or
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 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
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
Article 5 (2) of the Constitution stipulates that "the
Education
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
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
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.
Related articles of the Constitution
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
- History of South Korea
- Elections in South Korea
- Government of South Korea
- Constitutional Court of Korea
- List of national constitutions
References
- ^ Setting the Stage Archived 16 July 2007 at the Wayback Machine
- ^ "Constitutional history of Republic of Korea". ConstitutionNet. Retrieved 2022-05-15.
- ^ "Korea (Republic of)'s Constitution of 1948 with Amendments through 1987" (PDF). Constitute Project.
- ^ Reexamining Political Participation in Rousseau's Political Thought: Does Citizens' Political Participation Include Public Discussions and Debates edited by KANG Jung In
- ^ "대한민국임시헌장". www.law.go.kr (in Korean). Korea Ministry of Government Legislation.
- ^ Public Administration and Policy in Korea: Its Evolution and Challenges edited by Keun Namkoong
- ^ a b Republicanism in Northeast Asia edited by Jun-Hyeok Kwak, Leigh Jenco
- ^ "National Law Information Center_Constitution of South Korea". Archived from the original on 2015-09-28.
- ^ a b c d "Constitution of the Republic of Korea". Korea Legislation Research Institute. Retrieved 2022-05-16.
- ^ 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
- SSRN 1911245.
- ^ 류, 시조 (February 2015). "한국 헌법상의 정치적 중립성에 관한 연구". 공법학연구 제 16권 제 1호: 49–70.
- ^ "Page 127 of 16-2(B) KCCR 1, 2004Hun-Ma554, 566(consolidated), October 21, 2004". Constitutional Court of Korea. Retrieved 2022-05-08.
- ^ "Constitutional Court Act". Korea Legislation Research Institute. Retrieved 2022-05-08.