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The Constitution of the Republic of Korea () is the supreme law of
South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korean Peninsula and sharing a land border with North Korea. Its western border is formed by the Yellow Sea, while its eas ...
. It was promulgated on July 17, 1948, and last revised on October 29, 1987.


Background


The Provisional Charter of Korea

The preamble of the Constitution of South Korea states that the document was established in the spirit of "upholding the cause of the Provisional Republic of Korea Government", the Korean government exiled after the imposition of Japanese colonial rule of Korea. As such, the founding document of the provisional government—The Provisional Charter of Korea—serves as the basis for the current constitution. Promulgated in 1919, the charter first gave the country the "Republic of Korea" name and laid out the ideas forming the backbone of later South Korean constitutions. These ten articles are: # The Republic of Korea is a democratic republic country. # The Republic of Korea should be governed by the provisional people of the provisional government. # All citizens of the Republic of Korea are equal without gender, wealth and stratum. # All citizens of the Republic of Korea have the rights to be free of religion, media, writing, publishing, association, assembly, the charge of address, body and ownership. # The citizens who have the qualification of the citizen of the Republic of Korea have a right to vote and to be elected. # The citizens of the Republic of Korea have a duty to education, taxation, and military service. # The Republic of Korea will join the League of Nations in order to exert its founding spirit in the world and to contribute to human culture and peace by the will of God. # The Republic of Korea gives preference to the old imperial family. # The Republic of Korea forbids the punishment of life, body, and licensed prostitution. # The Provisional Government convenes the National Assembly within one year after the restoration of the country.


History

South Korea's first 1948 Constitution, drafted by Dr. Chin-O Yu (Hangul: 유진오; Hanja 兪鎭午), framed a presidential system mixed with a
parliamentary system A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of th ...
. It gave the president to act as the head of state, be elected indirectly by the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the rep ...
, and share executive power with the cabinet. The Constitutional Charter of the
Provisional Government of the Republic of Korea The Korean Provisional Government (KPG), formally the Provisional Government of the Republic of Korea, was a partially recognized Korean government-in-exile based in Shanghai, China, and later in Chongqing, during the period of Japanese co ...
of 1919 became the forerunner of 1948 Constitution.Republicanism in Northeast Asia edited by Jun-Hyeok Kwak, Leigh Jenco The 1948 Constitution was first amended in 1952 ahead of Syngman Rhee's re-election, providing for direct presidential elections and a bicameral legislature. It was passed with procedural irregularities after fierce debate. In 1954, Rhee again forced an amendment, removing term limits for himself and emphasizing a capitalistic economic model. Rhee was overthrown in 1960 following widespread protests against his increasingly authoritarian rule. Partly in response to Rhee's abuses, the Second Republic turned to a parliamentary system. The 1960 Constitution provided for a figurehead president, a bicameral legislature, a cabinet headed by a prime minister, an election commission, and a constitutional court. It also provided for elections for supreme court justices and provincial governors, as well as
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
-based individual rights. With the
May 16 coup The May 16 military coup d'état () was a military coup d'état in South Korea in 1961, organized and carried out by Park Chung-hee and his allies who formed the Military Revolutionary Committee, nominally led by Army Chief of Staff Chang Do ...
of Park Chung-hee in 1961, the 1960 version was nullified, and in 1962, the Third Republic's Constitution was passed. The document returned to a presidential system. It had a number of similarities to the United States Constitution, such as presidential elections held by the National Assembly in the event of a tie and carrying out
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
by the ordinary Supreme Court instead of a specialized Constitutional Court, though in practice military government would continue in some form until democratization. In 1972, Park extended his rule with the Fourth Republic's constitution, called the
Yushin Constitution The fourth Republic of Korea () was the government of South Korea from November 1972 to March 1981. The Fourth republic was founded on the approval of the Yushin Constitution in the 1972 constitutional referendum, codifying the ''de facto'' d ...
, which gave the president sweeping (almost dictatorial) powers and permitted him to run for an unlimited number of six-year terms. After Park was assassinated in 1979, the Fifth Republic began with the 1980 Constitution under President
Chun Doo-hwan Chun Doo-hwan (; or ; 18 January 1931 – 23 November 2021) was a South Korean army general and military dictator who ruled as an unelected strongman from 1979 to 1980 before replacing Choi Kyu-hah as president of South Korea from 1980 to 198 ...
. The president's powers were curbed somewhat. He was limited to a single seven-year term, with no possibility of reelection. As with the Yushin Constitution, it provided for a presidential electoral college and a semi-presidential system of government. Critically, however, the President retained the right to suspend civil liberties and rule by decree. With the pro-democratic protests of 1987 (
June Democracy Movement The June Democratic Struggle (), also known as the June Democracy Movement and June Democratic Uprising, was a nationwide pro-democracy movement in South Korea that generated mass protests from June 10 to June 29, 1987. The demonstrations force ...
), the 1988 Constitution of the Sixth Republic was passed. The constitutional bill was passed by the National Assembly on October 12, 1987, and approved by 93 percent in a national referendum on October 28, taking effect on February 25, 1988, when
Roh Tae-Woo Roh Tae-woo (; ; 4 December 1932 – 26 October 2021) was a South Korean politician and army general who served as the sixth president of South Korea from 1988 to 1993. Roh was a close ally and friend of Chun Doo-hwan, the predecessor leader ...
was inaugurated as president. The president's powers were curtailed and the constitutional court was restored. Amendment of the Constitution of South Korea


Succession of spirit

The spirit of April Nineteenth and
March 1st Movement The March 1st Movement, also known as the Sam-il (3-1) Movement (Hangul: 삼일 운동; Hanja: 三一 運動), was a protest movement by Korean people and students calling for independence from Japan in 1919, and protesting forced assimilation ...
is stipulated in the preamble of the Constitution of South Korea. However, it took a long time to be established. The contents of the
April Revolution The April Revolution ( ko, 4.19 혁명), also called the April 19 Revolution or April 19 Movement, were mass protests in South Korea against President Syngman Rhee and the First Republic from April 11 to 26, 1960 which led to Rhee's resigna ...
were removed on the fifth amendment, and these were included in the preamble on the sixth amendment, identified with
May 16 coup The May 16 military coup d'état () was a military coup d'état in South Korea in 1961, organized and carried out by Park Chung-hee and his allies who formed the Military Revolutionary Committee, nominally led by Army Chief of Staff Chang Do ...
. After the ninth amendment, the spirit of the
April Revolution The April Revolution ( ko, 4.19 혁명), also called the April 19 Revolution or April 19 Movement, were mass protests in South Korea against President Syngman Rhee and the First Republic from April 11 to 26, 1960 which led to Rhee's resigna ...
was excepted from the preamble, and it was included for the "Resistance ideology for protection of democratic constitution" on the 10th amendment.


Structure

Consisting of a preamble, 130 articles, and supplementary provisions, the Constitution provides for an executive branch headed by a
president President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
and an appointed
prime minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
, a
unicameral Unicameralism (from ''uni''- "one" + Latin ''camera'' "chamber") is a type of legislature, which consists of one house or assembly, that legislates and votes as one. Unicameral legislatures exist when there is no widely perceived need for multi ...
legislature A legislature is an assembly with the authority to make law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
called the
National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the rep ...
, and a
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
consisting of the
Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
, Supreme Court and lower courts. In detail, the Constitution is composed of ten Chapters. Chapter I provides general constitutional ground for the Republic of Korea itself and citizens. Chapter II provides basic rights for individuals. Other following Chapters from III to VII describe constitutional institutions constituting national governance structure of the Republic of Korea; for example, parliament as the National Assembly (Chapter III), executive branch as the
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
and the
Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
(Chapter IV), ordinary courts and military courts including the
Supreme Court of Korea The Supreme Court of Korea () is the highest ordinary court in the judicial branch of South Korea, seated in Seocho, Seoul. Established under Chapter 5 of the Constitution of South Korea, the Court has ultimate and comprehensive jurisdicti ...
(Chapter V), constitutional court as
Constitutional Court of Korea The Constitutional Court of Korea () is highest constitutional court in judicial branch of South Korea, seated in Jongno, Seoul. Established under Chapter 6 of the Constitution of South Korea, the Court has ultimate jurisdiction over judic ...
(Chapter VI), independent electoral management institution as the National Election Commission (Chapter VII). Also, Chapter VIII provides constitutional ground for local governments and their autonomy. Chapter IX address general provisions for economic system of the Republic of Korea. Finally, Chapter X stipulates procedure for amendment on the Constitution. The President is elected by a
first-past-the-post In a first-past-the-post electoral system (FPTP or FPP), formally called single-member plurality voting (SMP) when used in single-member districts or informally choose-one voting in contrast to ranked voting, or score voting, voters cast thei ...
voting system and limited to a single five-year term. The Prime Minister is appointed by the President with the consent of the National Assembly. The President also appoints members of the State Council, the Cabinet, on the advice of the Prime Minister, as well as Cabinet Ministers on the advice of the Prime Minister from among the members of the State Council. The National Assembly consists of at least 200 (presently 300) members elected to four-year terms. The Supreme Court's chief justice and President of the Constitutional Court are appointed by the
President of South Korea The president of the Republic of Korea (), also known as the president of South Korea (often abbreviated to POTROK or POSK; ), is the head of state and head of government of the Republic of Korea. The president leads the State Council, and is ...
with consent of the National Assembly. Supreme Court Justices other than the Chief Justice (exact number is set by statute) are appointed by the
President of South Korea The president of the Republic of Korea (), also known as the president of South Korea (often abbreviated to POTROK or POSK; ), is the head of state and head of government of the Republic of Korea. The president leads the State Council, and is ...
on the recommendation of the chief justice with the approval of the National Assembly. Also, Constitutional Court Justices other than the President of the Court are appointed by the
President of South Korea The president of the Republic of Korea (), also known as the president of South Korea (often abbreviated to POTROK or POSK; ), is the head of state and head of government of the Republic of Korea. The president leads the State Council, and is ...
upon nomination of equal portions from the National Assembly, the Supreme Court Chief Justice and themselves. The President of the Constitutional Court of South Korea serves a six-year term. The Constitution declares South Korea a "
democratic republic A democratic republic is a form of government operating on principles adopted from a republic and a democracy. As a cross between two exceedingly similar systems, democratic republics may function on principles shared by both republics and democra ...
" (took from Article 1 of Constitutional Charter of the Provisional Government of the Republic of Korea of 1919), its territory consisting of "the
Korean Peninsula Korea ( ko, 한국, or , ) is a peninsular region in East Asia. Since 1945, it has been divided at or near the 38th parallel, with North Korea (Democratic People's Republic of Korea) comprising its northern half and South Korea (Republic o ...
and its adjacent islands," and that "The Republic of Korea shall seek unification and shall formulate and carry out a policy of peaceful unification based on the principles of freedom and democracy." There are disputes over what "freedom and democracy" are in Korean, but the direct translation of the Korean word used in the constitution " ko, 자유민주적 기본질서" would be
liberal democracy Liberal democracy is the combination of a liberal political ideology that operates under an indirect democratic form of government. It is characterized by elections between multiple distinct political parties, a separation of powers into ...
.


Individual rights

South Korean Bill of Rights (or
fundamental right Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
) is Constitution CHAPTER 2. RIGHTS AND DUTIES OF CITIZENS (4-687) Individuals may not be punished, placed under preventive restrictions, or subjected to involuntary labor except as provided by law. Those detained or arrested must be informed of the reason and of their right to an attorney, and family members must be informed. Warrants must be issued by a judge "through due procedures," and accused persons may sue for wrongful arrest in certain cases.


Economic provisions

In Article 119, stable and balanced growth rates, "proper distribution of income", and preventing "abuse of economic power" are explicitly listed as goals of the government. The regulatory goal to "democratize the economy through harmony among economic agents" in the same article reflects the strong prevalence of traditional Korean values and the close relationship between politics and the economy. Article 125 designates foreign trade as a strategic area to be fostered, regulated and coordinated by the government. The Constitution affirms both the right and the duty to work, requiring regulation of minimum wages and working conditions. Workers have the right to independent association,
collective bargaining Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The ...
, and collective action.


Political neutrality

Political neutrality is a constitutional convention which provides that public servants should avoid activities likely to impair, or seem to impair, their political impartiality or the political impartiality of the public service. The political neutrality of South Korea's Constitution is guaranteed in the area of military, administration, and education. In the form of the guarantee of 'political neutrality', the constitution provides an objective legal system to guarantee political neutrality as an essential element of the system, unlike the form of guarantee of basic rights.


Military

Article 5 (2) of the Constitution stipulates that "the
ROK military The Republic of Korea Armed Forces (), also known as the ROK Armed Forces, are the armed forces of South Korea. The ROK Armed Forces is one of the largest and most powerful standing armed forces in the world with a reported personnel strength of ...
shall fulfill the sacred duty of national security and defense of the nation, and its political neutrality shall be obeyed" .


Education

Education promotes the potential of individuals so that individuals can develop their personality in each area of life. In view of the important functions of education, Article 31(6) of the Constitution stipulates to specify in the law about the basic laws and regulations about the education system and its operation, education finances and the status of teachers.


Administration

Political neutrality of public officials is specified in the law. Article 6(2) of the Constitution stipulates that "The status and political neutrality of public officials shall be guaranteed by law". Also, Article 9(1) of the Public Service Elections act regulates that Public servants or any other person (including any organization or organizations) that is required to be in a political neutrality shall not engage in any unfair influence on the election or otherwise act on the election results. Article 65 of the Public Officials Act (Prohibition of Political Movement) Section 2 regulates that Public officials shall not engage in the following activities to support or oppose a specific political party or a particular person in an election. 1. To make an invitation to vote or not 2. Pray, preside, or recommend the signatory movement. 3. To publish or post documents or books to public facilities 4. To make a donation recruitment, or to use public funds 5. To encourage others to join or not to join a political party or other political organizations


Constitutional Court

Following the 1987 revision, the
Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
was established in September 1988 by Chapter VI of the Constitution. Though earlier versions of the Constitution provided for various forms of
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
, the judiciary's lack of independence at the time prevented it from exercising this function. This historical background led drafters of current Constitution of South Korea to greatly empower the Constitutional Court.


Related articles of the Constitution

Articles 111 through 113 of the Constitution of the Republic of Korea refer to the Constitutional Court. * Article 111 : This article stipulates the enforcement of the Constitutional Court and the qualifications and appointments of the Constitutional Court Judges. ** Article 111(1) : Paragraph (1) of Article 111 sets the Court's jurisdiction, as Judicial review on constitutionality of statute, review of all Impeachments, decision on Prohibition and Dissolution of political parties, competence dispute about demarcation of power among central government agencies and local governments, and adjudication of constitutional complaint. For more information, see
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
. ** Article 111(2), (3) : Paragraph (2) and (3) of Article 111 sets qualification and appointment process of
Justices A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
of the Court. Number of Constitutional Court Justices are exactly stipulated as nine, according to paragraph (2) of Article 111. For more information, see Justices of the Court. ** Article 111(4) : This paragraph sets appointment process for the President of the Court. For more information, see the
President of the Constitutional Court of Korea The President of the Constitutional Court of Korea () is the Chief Justice of the Constitutional Court of Korea. As presiding judge of Full bench composed of nine Justices, the President represents the Constitutional Court of Korea. The Presi ...
. * Article 112 : This article stipulates term and ethical obligations of Constitutional Court Justices and guarantee of their status. ** Article 112(1) : Paragraph (1) sets term of the Constitutional Court Justices as renewable six years. ** Article 112(2) : Paragraph (2) specifies ethical obligations of the Constitutional Court Justices. To protect political neutrality, they should not join any political party, nor shall participate in political activities. ** Article 112(3) : Paragraph (3) guarantees that Constitutional Court Justices cannot be removed at will from their office. Unlike Justices at the Supreme Court of Korea, Constitutional Court Justices enjoy more reinforced guarantee of status since they cannot be ordered to retire due to unbearable mental or physical impairment. For more information, see article 106(2) of the Constitution and the tenure of Supreme Court Justices. * Article 113 : This article provides constitutional ground for quorum and organizational autonomy of the Court. ** Article 113(1) : According to the paragraph (1) of the article, to make decision upholding requests for the Adjudication, or to change precedent, the Court needs votes from at least six Justices among quorum of at least seven Justices. For more information, see Quorum of the Court. ** Article 113(2) : This paragraph empowers the Court to enact sub statutory rules for internal issues, including specific process of adjudication and other organizational issues inside the Court. As one of highest constitutional institution of South Korea, the Court enjoys organization autonomy from other constitutional institutions. ** Article 113(3) : This paragraph is constitutional ground for statute called 'Constitutional Court Act', which regulates and specifies exact boundary of jurisdiction, autonomy and power of the Court.


See also

*
History of South Korea The history of South Korea formally begins with the Japanese surrender on 2 September 1945. Noting that, South Korea and North Korea are entirely different countries, despite still being the same people and on the same peninsula. Backgrou ...
*
Elections in South Korea Elections in South Korea are held on a national level to select the President and the National Assembly. Local elections are held every four years to elect governors, metropolitan mayors, municipal mayors, and provincial and municipal legislature ...
*
Government of South Korea The Government of South Korea is the union government of the Republic of Korea, created by the Constitution of South Korea as the executive, legislative and judicial authority of the republic. The president acts as the head of state and is th ...
*
Constitutional Court of Korea The Constitutional Court of Korea () is highest constitutional court in judicial branch of South Korea, seated in Jongno, Seoul. Established under Chapter 6 of the Constitution of South Korea, the Court has ultimate jurisdiction over judic ...
*
List of national constitutions The following is a list of national constitutions by country, semi-recognized countries, and by codification (law), codification. Codified constitutions (most recent, in use today) A codified constitution is a constitution that is contained in a ...


References


External links


Constitutional Court of Korea, English website

The Constitution of the Republic of Korea (translated into English), Korea Legislation Research Institute

Constitutional Court Act (translated into English), Korea Legislation Research Institute


{{DEFAULTSORT:South Korea, Constitution Law of South Korea
South Korea South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korean Peninsula and sharing a land border with North Korea. Its western border is formed by the Yellow Sea, while its eas ...