Judicial Review and Social Change in the Korean Democratizing Process

Abstract

Since the massive anti-government protest and the following constitutional reforms of 1987, Korea has been in the process of gradual democratization. Among the remarkable changes in various fields, the recent active operation of constitutional adjudication is particularly notable from a socio-legal point of view. At the outset, it would be appropriate to provide a brief historical overview of judicial review in Korea.' There is probably no other country which has experienced so many changes in its judicial review system within such a relatively short period of time. Since the establishment of the first, democratic Constitution of 1948, Korea has had a judicial review system in one form or another, varying in type from the European to the American, or mixed. With each change of government, and the consequent Constitutional revision, the judicial review system also changed. What is significant from a socio-legal perspective is the actual working of the judicial review system rather than its institutional form. During the First Republic (1948-1960), the Constitutional Committee, with the power of judicial review of legislation, reviewed only 7 cases, including 2 cases in which it struck down laws restricting the right of appeal to the Supreme Court. Under the Constitution of the Second Republic (1960-1961), the Constitutional Court was formed on the German model. This system, however, had no opportunity to function at all due to the military coup in 1961. The Constitution of the Third Republic (1961-1972) adopted a judicial review system of the American type. In the 10 years of its operation, the Supreme Court held a law unconstitutional in only one instance. The challenged law was a statute which restricted the right of military servicemen and policemen to claim damage redress against the state. In the aftermath of this decision, when Justices were considered for reappointment under the new Constitution of