2016 Global Review of Constitutional Law

South Korea
DEVELOPMENTS IN SOUTH KOREAN CONSTITUTIONAL LAW
Leo Mizushima, Research Associate at the Institute of Comparative Law at Waseda
University
SOUTH KOREA
INTRODUCTION
Since the founding of the Republic of Korea
in 1948 until the 1980s, Korea was under authoritarian
government. Korea democratized
in 1987, and the Constitutional Court was
established the following year. The Korean
Constitutional Court is dedicated to democratization
and the improvement of human
rights in Korean society, which reflects in the
character of the Court. The year 2017 is the
30th anniversary of democratization.
The year 2016 was one of the most important
years in the history of Korean constitutional
law. Late in the fall, President Geun-hye
Park became embroiled in a political scandal,
dubbed the “Choi Soon-sil gate,” which
resulted in a strong backlash from the people.
The president was suspected of leaking
state secrets to her longtime friend and
private aide, Soon-sil Choi. The people protested
against President Park and demanded
her resignation. The impeachment bill of
President Park was approved by the National
Assembly on December 9, and the Constitutional
Court had to decide if Park deserved
to be impeached within 180 days. All eight
judges of the court unanimously approved
the impeachment on March 10 and President
Park was officially impeached from office.
This article examines the system of constitutional
review and the structure of the Korean
Constitutional Court before introducing
some cases. Subsequently, the major cases
from 2016 will be introduced. The problems
and tasks of the Korean Constitutional Court
and the Constitution will be discussed in
conclusion.
THE CONSTITUTION AND THE
COURT
The political system in the Republic of Korea
has been changed frequently by presidents
since its foundation in 1948. The system of
constitutional review has also changed drastically.
For instance, the First Republic, the
Syng-man Rhee administration, established
the Constitutional Council for Constitutional
review. The Second Republic, the only
parliamentary cabinet system implemented
in the history of Korea, planned to build
the Constitutional Court instead. However,
the Second Republic was short-lived due to
the military coup led by General Chung-hee
Park, who later became president, and the
Constitutional Court was never established.
During the Third Republic, the Chung-hee
Park administration, the Supreme Court conducted
the constitutional review. The Fourth
Republic, during which President Park’s
power strengthened, and the Fifth Republic,
the Doo-hwan Chun administration, re-established
the Constitutional Council from
the First Republic. However, during the authoritarian
regime, the Constitutional review
was not actively exercised, and only a few
cases took place during the First and Third
Republics.
In 1987, Korea was democratized, and the
Constitution amended. The Constitutional
Court was established the following year.
According to the Korean Constitution, the
Constitutional Court consists of nine Justices,
three nominees each chosen by the
National Assembly, president, and Supreme
Court. Choosing three nominees each from
three different power centers was instituted
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