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The Major Influences of the U.S. Constitutional Law Doctrines on The Golden Gate University School of Law GGU Law Digital Commons Theses and Dissertations Student Scholarship Spring 2007 The aM jor Influences of the U.S. Constitutional Law Doctrines on the Interpretation and Application of the Constitution of the Republic of Korea : Critical Analysis on the Current Constitutional Court's Decisions and Thoughts of the Necessity of Amendment of the Current Constitution of the Republic of Korea Hanjoo Lee Golden Gate University School of Law Follow this and additional works at: http://digitalcommons.law.ggu.edu/theses Part of the Constitutional Law Commons Recommended Citation Lee, Hanjoo, "The aM jor Influences of the U.S. Constitutional Law Doctrines on the Interpretation and Application of the Constitution of the Republic of Korea : Critical Analysis on the Current Constitutional Court's Decisions and Thoughts of the Necessity of Amendment of the Current Constitution of the Republic of Korea" (2007). Theses and Dissertations. Paper 18. This Dissertation is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. THE MAJOR INFLUENCES OF THE U.S. CONSTITUTIONAL LAW DOCTRINES ON THE INTERPRETATION AND APPLICATION OF THE CONSTITUTION OF THE REPUBLIC OF KOREA: Critical Analysis on the Current Constitutional Court's Decisions and Thoughts of the Necessity of Amendment of the Current Constitution of the Republic of Korea BY HANJOO LEE Professor Sompong Sucharitkul (Supervisor) Professor Mark Stickgold (Advisor) Professor Christian Nwachukwu Okeke (Advisor) DO NOT REMOVE FROM LAW LIBRARY NOV 0 9 2009 GOLDEN GATE UNIVERSITY GOLDEN GATE UNIVERSITY SCHOOL OF LAW INTERNATIONAL LEGAL STUDIES I SPRING 2007 l --.... ----------------------------- THE MAJOR INFLUENCES OF THE U.S. CONSTITUTIONAL LAW DOCTRINES ON THE INTERPRETATION AND APPLICATION OF THE CONSTITUTION OF THE REPUBLIC OF KOREA CONTENTS I. INTRODUCTION - Motivations and Purposes of the Study - Methodology of the Study - Organization of the Dissertation ,+ II. THE IMPACT OF [THEJ AMERI CAN IMPERI~ISM ON THE KINGDOM OF KOREA ("CHOSUN") IN THE LATE 19TH "cENTURY A. Introduction B. The Opening of Kingdom of Korea 1. The Laws and Cultural Background of the Kingdom of Korea 2. The Seclusion Policy flu t1,t 3. The Initial Contact with (America) 4. The Treaty Period: 1882-1905 5. Introducing the Western Ideas: Catholicism and Protestantism a. Catholicism b. Protestantism c. Summary 6. American Educated Elitevin Korean Society 7. First Appearance of American Constitutionalism in the Nineteenth Century Korea: The Era of Enlightenment Movement 8. Summary C. The Dark Era: Under the Japanese Annexation (1910- 1945) 1. The March First MOvement and the Korean Declaration of Independence a. The March First Independence Movement b. The Creation of the Exile Provisional Government of the Republic of Korea 2. The Constitutional Charter of the Provisional Government of Korea in Shanghai, China 3. Summary "fA" TIN! III. OVERVIEW OFACONSTITUTION OF~REPUBLIC OF KOREA WITH INFLUENCES OF U.S. CONSTITUTIONAL DOCTRINES A. Brief Review of [the Ame~can) Constitutional Principles B. The United States Military Government In Korea ("USAMGIK") and the Establishment of "'Constitution of Republic of Korea ~ 1. The Period of the United States Military Government In Korea (1945-1948) 2. The Establishment of the Constitution of Republic of Korea A.. a. Influence of the U.S. Constitution on Individual Liberties b. Presidential Government and Legislature c. Judiciary 3. Summary 11 C. The Constitution of the First Republic (1948-1960): Syngman Rhee's Regime .. 1. First Amendment (July 7, 1952) -"the Excerpt Amendment" 2. Second Amendment (November 29, 1954)-so called, the Amendment by "Sleight-of-hand rounding off" D. The Constitution of the Second Republic (1960-62): ~1~ The Turn to Democracy 1. Third Amendment (June 15, 1960) 2. Fourth Amendment (November 29, 1960) E. The Constitution of the Third Republic (1962~) IO~ System based on u.S. Constitution Principles 1. Post-war U.S.-Korean Relations to 1972 2. Fifth Amendment (December 26, 1962): The Turn to Military Authoritarianism a. the Presidential Governmental System b. Judicial Review c. Summary F. The Constitution of the Fofth Republic (1972-79) 7 ~ 1. Political Background under the Park's Regime: 1962 to 1972 2. Sixth Amendment: October 21, 1969 3. Seventh Amendment (December 27, 1972): Yushin Regime a. The Constitution of 1972 111 b. Presidential Absolutism versus Nominal Judiciary and Legislature c. Denial of Fundamental Human Rights d. The Yushin System G. The Constitution of the Fifth Republic (1980-87) 7 ~ 1. The Transition from Part to Chun 2. The Content of Chun's Fifth Constitution /1J7 H. The Sixth Republic and Current Constitution 1. The End of the Fifth Republic and Journey to the Democratic Society 2. Significances of the Current Constitution IV. JUDICIAL REVIEW IN KOREA A. The Origin of the Judicial Review 1. Constitution and its Supremacy 2. The American System of JUdicial Review B. History on Judicial Review System in Korea (1948 to 1987) C. INSTITUTIONAL COMPARISON 1. United States 2. Korea D. Judicial Review and the Constitutional Court 1. Foundation of the Constitutional Court 2. The Jurisdiction of the Constitutional Court IV 3. Statistical Review of the Constitutional Court Cases 4. Modified For.ms of the Constitutional Court Decisions and Standards of Review 5. Notable Decisions v. PRESIDENTAL GOVERNMENT A. Unending Issue of Constitutional Law of Korea: System of Government B. The Early Adoption of American Style of Presidency C. Problems in Current Presidential System D. Necessity of Amendment E. The Other Issues: Separation of Powers and Independence of Judiciary , VI. THE INTERPRETATION AND APPLICATION OF HUMAN RIGHTS COVENANT IN KOREAN COURTS A. Ratification of Major International Human Rights Covenants 1. Relationship Between Domestic Laws and the ICCPR 2. Direct Applicability 3. Hierarchy B. The Interpretation of International Human Rights Covenants in Korean Courts C. Summary VII. CONCLUSION BIBLIOGRAPHY v THE MAJOR INFLUENCE OF THE U.S. CONSTITUTIONAL LAW DOCTRINES ON THE INTERPRETATION AND APPLICATION OF THE CONSTITUTION OF THE REPUBLIC OF KOREA I. INTRODUCTION The life of the law has not been logic, it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as though it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. OLIVER WENDELL HOLMES, THE COMMON LAW, 1881 Motivation and the PUrposes of the Study The year of 1997 might be the most dramatic turning point of modern Korean history. Thanks to the result of the Election for the Fifteenth President of the Republic of Korea, the ruling party whose power originated from the military regime during the last five decades finally replaced by the long time opposition party, which has been recognized as more democratic or liberal party, for the first time in modern Korean history. The new President, Kim Dae-Jung, who has been known as the symbol of Korean pro- democracy movement, declared that "[W]e inaugurated the "Government of the People" through a peaceful transition of power from the ruling to an opposition party for the first 1 time in the history of the Republic of Korea" in his address for commemorating the 50th Anniversary of the Republic of Korea. 1 Kim Dae-Jung has devoted his life for Korean democracy and human rights protection. Many Korean people, therefore, expect him to generate the human rights situation and also, more importantly, to reform our nation politically and economically. Needless to say, he has stressed the necessity of nation's reform. Unlike the former presidents, who had urged more importance of economical development rather than political development, he emphases the importance of harmonious development of both political democracy and economical success in parallel. 2 In addition to this transition of political environment, one of his sensational campaign promises was the amendment of Constitution that is to replace the current Presidential government to the Parliamentary government. 3 th 1 Kim Dae-Jung, Commemorating the 50 Anniversary of the Republic of Korea, Chongwadae, Aug. 15, 1998 <http://www.chongwadae.com>. 2 D.J. Kim, supra note 1, He urged that "[T]he governing philosophy of the current government is to develop democracy and a free market economy in parallel." 3 He has agreed earlier with Kim Jong-pil of the United Liberal Democrats (ULD) that they will pursue the Cabinet system of government if he wins. See the Korean Politics Web-Site at <http://www.koreanpolitics.com/1997/election/front.html>. 2 Since the end of World War II, the United States has affected constitutionalism in many countries of Asia. The United States occupied the Philippines (1898-1946, except 1943-1945), Japan (1945-1952), and South Korea (1945-1948) and encouraged democratic revolution there, with different polices and results. 4 The U.S.A. Military Government in Korea ("USAMGIK") directly governed southern part of Korean Peninsula from its liberation in 1945 until the establishment of the Constitution of the Republic of Korea with declaration of beginning of independence in 1948. Although Americans did not participate in drafting the Constitution, USAMGIK gave its essential backing to the autonomy of Korea's constitution-making process with making series of ordinance. Moreover, with relatively short consti tutional history, the Constitution has been amended nine times during last five decades. In the course of this transition, the influence of American constitutional law doctrines has been enormous. Wi th all the above respects, the primary purpose of this research is to find how the United States' constitutionalism has influenced on the interpretation and application of the Constitution of the Republic of Korea.
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