Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Rhee, Woo-young --- "Democratic Legitimacy of Law and the Constitutional Adjudication in the Republic of Korea" [2010] ELECD 257; in Cho, Kuk (ed), "Litigation in Korea" (Edward Elgar Publishing, 2010)

Book Title: Litigation in Korea

Editor(s): Cho, Kuk

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443396

Section: Chapter 7

Section Title: Democratic Legitimacy of Law and the Constitutional Adjudication in the Republic of Korea

Author(s): Rhee, Woo-young

Number of pages: 25

Extract:

7. Democratic legitimacy of law and the
constitutional adjudication in the
Republic of Korea
Woo-young Rhee

I. INTRODUCTION: CONSTITUTIONAL ADJUDICATION
IN THE REPUBLIC OF KOREA
1. Constitution, Constitutionalism, Constitutional Adjudication and
Constitutional Court in the Republic of Korea

The essence of constitutionalism lies in the fact that legislation is bound by the
nation's constitution and that the powers of the government including the
executive and adjudicative powers are governed by such law.1 Since the estab-
lishment of popular sovereignty and constitutionalism, the constitution has
gradually become directly applicable in and through adjudication. Like many
other counterparts, under the current Constitution of the Republic of Korea,
the legislative function of the nation is primarily exercised in the form of
enactment of the statute and revision thereof by the National Assembly, the
national legislature composed through direct democratic election, as well as
administrative and judicial lawmaking. Further, under the separation of
powers design of the current Constitution, the Constitutional Court of the
Republic of Korea checks and controls such legislative function, to keep both
the process and the substance of the legislative Act in compliance with the
Constitution. Specifically, control over the legislative process is effectively
exercised by way of adjudication over disputes between and among the
governmental institutions, while control over the legislative outcome includ-
ing the statutes, executive orders and rules is primarily exercised by way of
constitutionality review over a specific law or its provisions.
A system under the Constitution of the Republic of Korea through ...