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History

History of Constitutional Adjudication
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  • Founding ConstitutionThe Constitution of the First Republic

    Established and proclaimed on July 17, 1948, the Founding Constitution stated in Chapter 5: “When the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Committee, and shall rule according to the decision thereof.” Also, it stated, “The Constitutional Committee shall be composed of five Supreme Court Justices and five members of the National Assembly, with the Vice President as the Chairman of the Committee.” At the time, the jurisdiction of the Committee was limited to adjudication on the constitutionality of statutes. For adjudication on impeachment, there was a separate organ, the Court of Impeachment. The Constitutional Committee functioned for more than ten years, but its activity was not significant. It decided on only six cases during its existence. Among the decisions, it ruled that Agricultural Land Reform Act Article 18-1, 24-1 and the Special Measure Decree on Punishment of Crimes Under National Emergency Article 9-1 were unconstitutional.

  • 1960 ConstitutionThe Constitution of the Second Republic

    In 1960, the Constitution’s chapter 8 provided for a separate Constitutional Court. Nine justices were to be appointed with terms of six years: three Justices were appointed by the President, three by the Supreme Court, and three by the National Assembly. Unlike the preceding Constitutional Committee, the Constitutional Court was to be set up as a permanent institution. The Constitutional Court’s jurisdiction included adjudication on the constitutionality of statutes, final interpretations of the Constitution, adjudication on competence disputes, adjudication on dissolution of a political party, impeachments, and litigations involving the election of the President, Chief Justice of the Supreme Court, and Justices. However, the Constitutional Court was never formed due to the 5.16 coup d'état which took place only a month after the enactment of the Constitutional Court Act.

  • 1962 ConstitutionThe Constitution of the Third Republic

    In 1962, the Constitution entrusted adjudication on the constitutionality of statutes, adjudication on dissolution of a political party, and election lawsuits to the Supreme Court. Impeachment was to be adjudicated by the Impeachment Committee, and there was no system to judge competence disputes. The Supreme Court ruled that the National Compensation Law’s provisional clause under Article 2-1, and the Court Organization Act Article 59-1 were unconstitutional. It confirmed the constitutionality of Military Criminal Law Article 47, National Compensation Law Article 3, and National Security Law Article 4-1, capital punishment in criminal law, and limiting the object of rape to women.

  • 1972 and 1980 ConstitutionThe Yusin Constitution and The Constitution of the Fifth Republic

    The Yusin Constitution and the Fifth Republic Constitution set up the Constitutional Committee once again. Although it was endowed with the jurisdiction to judge constitutionality of statutes, impeachments, and dissolution of a political party at the request of the courts, the power was in name only, as no judgments were made during this period.

  • Current Constitution and the Birth of the Constitutional Court

    In response to the citizens’ strong longing for democracy and assurance of basic rights, the ruling party and the opposition party agreed to provide for the establishment of a Constitutional Court in the revised constitution proclaimed on October 29, 1987. Finally in Chapter 6 Articles 111-113, it bestowed upon the Constitutional Court the adjudication on constitutionality of statutes, impeachments, dissolution of a political party, competence disputes between government institutions or local and federal organs, and constitutional complaints. On August 5, 1988, as provided in Article 113-3 of the Constitution, the Constitutional Court Act was proclaimed, which outlined provisions needed for the organization and management of the Constitutional Court. On September 15, 1988, the first nine Justices were appointed, and the Constitutional Court came into being for the first time in the history of Korea. The current Constitution ascribes all jurisdictions regarding the Constitution to the Constitutional Court. In particular, the introduction of the constitutional complaint, a system developed in European countries such as Germany, which allows a citizen to petition directly to the Court on violation of basic rights, is a symbol of the constitutional sprit that emphasizes the peoples’ basic rights, and is an important event in the history of Korean constitutionalism.

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