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Announcements -Research Paper Citation Guide due in Quiz Section tomorrow, Wed. 16 May. -Paper Citation Guide on course web page -Thursday 17 May: Paper.

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Presentation on theme: "Announcements -Research Paper Citation Guide due in Quiz Section tomorrow, Wed. 16 May. -Paper Citation Guide on course web page -Thursday 17 May: Paper."— Presentation transcript:

1 Announcements -Research Paper Citation Guide due in Quiz Section tomorrow, Wed. 16 May. -Paper Citation Guide on course web page -Thursday 17 May: Paper due as a hardcopy in class AND via E-Submit on the course web page

2 South Korea Case Study I. Distinctive Characteristics of South Korean Courts A. Democratization from military rule difficulties transferring to democracy no dominant party = wider judicial review and less constrained Const. Court political uncertainty and political diffusion

3 (I. Distinctive Characteristics, cont.) B. Mixed Legal Traditions 1. Japanese Civil Law tradition - Japanese colonial period ( ) 2. US Post WWII Occupation - 3 yr occupation, US style constitutionalism C. Activist Legal Community – activist court - “lawyers group for the achievement of democracy”

4 II. Korean Constitutional Court A. Creation: Constitution and 1988 Constitutional Court Act

5 (II. Korean Constitutional Court, cont.) B. History: legacy of constitutional review 1. First Republic ( ): Constitutional Committee (Korean War: ) 2. Second Rep. ( ): Democracy, constitutional court then military coup 3. Third Republic ( ): US style judicial review, military rule but with emphasis on economic expansion

6 (II. Korean Constitutional Court, B. History, cont.) 4. Fourth Republic ( ): Constitutional Committee 5. Fifth Republic ( ): Constitutional Committee 6. Sixth Republic (1988-present): Democracy, constitutional court

7 (II. Korean Constitutional Court, cont.) C. Structure and Relative Autonomy 1. Constitution: 1988 Constitutional Court Act; Constitution (1987) Chap V Courts, Chap VI Constitutional Court 2. Judges: nine justices, appointed by 3 Nat Assemby, 3 Chief Justice of Sup Crt, 3 by President, six year renewable term

8 (II. Korean Constitutional Court, C. Structure, cont.) 3. Judicial Review a. Concrete Review: including ordinary courts and individual constitutional complaints b. impeachment decisions c. dissolution of political parties d. jurisdictional disputes between government institutions

9 (II. Korean Constitutional Court, C. Structure, cont.) 4. Access: a. government institutions: ordinary courts, national assembly, president b. individuals 5. Separation of Powers: a. 3 Tiers of Courts: civil, criminal, admin. b. conciliation committees: Japanese tradition, civil cases

10 (II. Korean Constitutional Court, C. Structure 5. Separation of Powers, cont.) c. Supreme Court – Const. Court Tensions 1. Overlapping review power - art 107 grants supreme court review powers over the constitutionality of admin acts - art 111 grants Const Court power to rule on the constitutionality of law 1990 Case: CC declares it has admin. review powers Tax Law Case: 1995 & 1997 CC declares the power to annul Supreme Court rulings

11 (II. Korean Constitutional Court, C. Structure 5. Separation of Powers, cont.) 2. Competing Historical Legacies - Supreme Court: represents Korean Legal tradition, conservative similar to Japan - Constitutional Court: represents shift to new democracy, models after US & Germany 3. Lower Court Activism

12 III. Individual Human Rights Protection in Korea A. Constitutional Court – Active Advocate of Civil Rights 1. Dismantling Authoritarian System 1990 Case: CC declares the National Security Law having limited constitutionality 1995 Case: CC held that acts committed during a military coup can be criminally punished

13 (III. Individual Human Rights Protection in Korea A. Constitutional Court, cont.) 2. Basic civil rights and liberties 1997 Case: Social Equality: CC declared unconstitutional an article in the civil code that prohibited intermarriage of Koreans with the same family name and regional origin Case: Freedom of Speech/Expression: declared provisions of the Motion Picture Act to be unconstitutional

14 (III. Individual Human Rights, cont.) B. Human Rights Infrastructure - National Human Rights Commission Entry into United Nations in Ratification of International Human Rights conventions, also ICC C. Continued Human Right Violations - National Security Law: CC did not complete limit wrongful use of this law to imprison opposition - Trade Unionists: arrests of union leaders organizing strikes.

15 IV. Comparing Courts in New Democracies A. Challenges to the Government & Constitutional Review Powers Taiwan: limited until 2000 reforms Korea: Constitution 1987 and Constitution Act gave considerable power to constitutional court

16 (IV. Comparing Courts in New Democracies, cont.) B. Access Taiwan: govt. agencies and individuals, but individuals were effectively discouraged Korea: govt agencies and individuals and individual complaint widely used and CC encouraged this by widening standing and its own powers

17 (IV. Comparing Courts in New Democracies, cont.) C. Relative Autonomy/Structure Taiwan: 2000 reforms significant change in judicial appointments, Grand Justices remained quiet compared to ordinary judiciary, Grand Justices couldn’t originally declare a SC ruling as unconstitutional Korea: Appointments are equally shared, in tension with equally powerful SC

18 (IV. Comparing Courts in New Democracies, cont.) D. History/Cultural Factors Taiwan: slow transition to democracy by dominant party; US, German and Chinese influences Korea: transition to democracy from military rule; diffuse political interests; US, German and Japanese influences


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