Constitutional Divergence and Transitional Justice in South Korea and Taiwan

Abstract

Democratization in South Korea and Taiwan happened in the same year of 1987, but the two countries have experienced very different trajectories to transitional justice. South Korea started to deal with its political atrocities in mid 1990s, while Taiwan only set up its transitional-justice commission in 2018. With a comparative approach, this chapter aims at exploring the difference of transitional-justice legislations and the roles of constitutional courts in these two countries that lead to the divergence of transitional-justice development. Three perspectives including legal stability, the legality of authoritarian law, and the legitimacy of authoritarian rule are examined. It, therefore, analyzes the structural differences of the two courts’ jurisprudences and the judicial implications for transitional justice. It argues that the decisions of each constitutional court have reflected the relationship between the judiciary and the newly established democracy. The two constitutional courts have deployed different legal techniques to deal with the constitutional barriers like prohibition on retroactivity, which strike a balance between the public outcry for the truth and the rule of law.