Korean Constitution Research Articles

미래공동체 담론으로서 조소앙의 삼균주의 탐색 - ‘민주공화’와 ‘균등’을 중심으로

This paper examines Jo So-ang’s doctrine of “Three Equalities” (samgyunjuui) as a foundational source for future community discourse, focusing on the concepts of a “democratic republic” and “equality.” To this end, the study first reviews the Preamble and Article 1 of the First Constitution of the Republic of Korea, analyzing “equality” as a defining feature of the Korean Constitution and the idea of a “democratic republic” as the framework of the national community. Next, the study examines Jo So-ang’s interpretation of a “democratic republic” from the 1910s to the 1940s. It then reviews the relationship between the individual and the community within Jo So-ang’s doctrine of “Three Equalities” and further examines the significance of “equality” within the context of this relationship. Based on these analyses, the potential of the doctrine of “Three Equalities” as a discourse on the future community is discussed. In the Preamble of the First Constitution, emphasis is placed on both individual freedom and equality while advocating for the establishment of an equitable society through social and economic democracy. Article 1 defines the Republic of Korea as a “democratic republic,” a term that combines two concepts: “democracy” as a political system based on the separation of powers, and “republic” as a state governed by the people rather than a monarch. This emphasis on the democratic republic system and equality originates from Jo So-ang’s doctrine of “Three Equalities.” During the drafting of the Provisional Charter (1919) by the Provisional Government, Jo So-ang initially understood the “democratic republic” as merely the opposite of an absolute monarchy. However, as his understanding of democracy deepened and the doctrine of “Three Equalities” was established, “democratic republic” came to signify a system grounded in “equality” achieved through the equal political participation of all people. Jo So-ang regarded “equality” as the core of his doctrine of “Three Equalities” to prevent wars caused by disparities and inequalities among individuals, nations, and states, and to achieve peace and happiness for humanity. For him, “equality” held intrinsic value as an essential element for realizing peaceful coexistence between the individual and the community. In conclusion, Jo So-ang’s doctrine of “Three Equalities,” which advocates a “democratic republic” based on equality and emphasizes “equality” as a core value for the coexistence of individuals and the community, holds significant value as a discourse on the future community of the Republic of Korea.

State responsibility under Article 34 Paragraph 5 of the Korean Constitution and Rawls' principle of mutual assistance of citizens

State responsibility under Article 34 Paragraph 5 of the Korean Constitution and Rawls' principle of mutual assistance of citizens

Bangladesh

Abstract This article evaluates South Korea’s state practice of international law, highlighting its consistent adherence to fundamental principles and active contributions to new norm development. The Korean Constitution’s monistic approach integrates international treaties and customary international law as part of domestic law, promoting harmony between national and international legal standards. The analysis covers Korea’s judicial support for international norms, commitment to peace under Article 5 of the Constitution, treaty-making mechanisms, and significant contributions to maritime safety and human rights. By exploring these diverse areas, the article argues that Korea is both a norm-taker and a norm-maker, aligning with modern international law principles while fostering the development of new norms.

형사사법(司法)절차에서 통역을 받을 권리의 헌법적 보장과 그 실현을 위한 입법과제

This paper explores the critical role of judiciary interpreting in legal proceedings, focusing on the necessity for accurate and effective court interpretation for defendants who do not speak the court's language. Judiciary interpreting is distinct from general interpreting because it directly impacts the protection of basic rights and the fairness of the trial. Without proper interpretation, defendants may not fully understand the charges against them or the legal procedures, leading to the potential infringement of their defense rights and the integrity of the trial. As South Korea transitions into a multicultural society, the influx of immigrants has led to an increase in criminal cases involving non-native Korean speakers. These defendants often face difficulties in both testimony and communication with legal professionals due to language barriers. In response, South Korean law mandates the assistance of interpreters during criminal procedures (Article 180 of the Criminal Procedure Act) and has introduced systems like the 2021 court interpreter certification program. However, issues such as a lack of qualified interpreters for minority languages and insufficient understanding of legal terminology among interpreters still hinder the full realization of defendants' rights. This paper addresses the constitutional foundation of the right to interpretation, emphasizing that this right derives from the principles of due process, the right to a fair trial, and bodily freedom guaranteed in the Korean Constitution. By comparing legal systems in Canada, the U.S., and the European Court of Human Rights (ECHR), this study examines the standards for interpretation rights and suggests improvements for South Korea's judiciary interpreting system. Key recommendations include establishing objective criteria for determining when interpretation is necessary, ensuring interpreter competence, and formalizing interpretation guidelines in the legal system to safeguard the accuracy and impartiality of court interpretation. The paper concludes that an effective judiciary interpreting system is essential to maintaining the fairness of trials in a multicultural society and calls for legislative reforms to enhance interpreter training and certification.

Medical crisis in 2024: challenges for Korea’s medical policy

Background: On February 6, 2024, the Korean government announced a drastic increase in the medical schools’ admission quota to 2,000, sending shockwaves through the medical community. In protest, residents submitted their resignations and medical students submitted their leaves of absence.Current Concepts: The government has used many shocking tactics in pushing for greater medical school quotas. First, the government used lies to incite public opinion and socially isolate a group of doctors. Second, it violently imposed law enforcement against residents in the process of promoting the medical school expansion policy. Third, it pursued a medical school expansion policy that did not consider the quality of medical education. Triggered by the government’s rapid expansion of medical schools, fierce resistance from doctors and medical students has revealed structural contradictions in the Korean healthcare system.Discussion and Conclusion: In essence, the medical crisis of 2024 has been created by the government. The medical community cannot stop its legitimate criticism and resistance for the following reasons. First, this is not just a medical crisis but a crisis of the Korean constitution, rule of law, and democracy. Second, the fate of future generations depends on the resolution of the 2024 medical crisis. Third, the government’s policies are not saving essential medicine, but pushing it off the cliff.

Ministry of Justice of the Republic of Korea: History and Modernity

The article is devoted to the Ministry of Justice of the Republic of Korea (hereinafter RoK, Republic). The authors examine the history of the creation in the Korean government of the department responsible for the implementation of laws, law enforcement personnel, and judicial processes. The Ministry of Justice functioned until the Japanese occupation in 1910. The new history of the Ministry began after the liberation of Korea. In 1948, the Korean Constitution came into force. Currently, the system of executive authorities of the Republic is determined by the Law on the Organization of Public Administration. In accordance with this law, the Ministry of Justice is an independent structure. The Presidential Decree on the Ministry of Justice and its subsidiaries regulates the structure and competence of the department. Certain powers of the Ministry of Justice are regulated by the laws on the prosecutor’s office, on probation, on immigration, on lawyers, on notaries, on civil servants and other regulations. A wide range of issues fall within the scope of the Ministry. The Ministry of Justice is responsible for the execution of laws, the prosecutor’s office, migration, correctional institutions, prosecutorial and legal personnel, legal assistance in civil and criminal cases. The article analyzes in details the provisions of Korean legislation on the structure and competence of the Ministry of Justice. The authors examine closely the status of Ministry employees and holding them accountable. Contemporary issues related to the activities of the Ministry of Justice are revealed. The role of the Ministry of Justice in the supervision of the prosecutor’s office, the legal profession, correctional institutions and probation is highlighted. The powers of the Ministry of Justice in the field of execution of punishment, rehabilitation of off enders and immigration are analyzed. The authors show how the Ministry is involved in international cooperation. Particular attention is paid to the importance of the Ministry of Defense in the process of improving Korean legislation.

농촌 과대대표의 헌법적 문제점

A lawmaker's realistic goal is to get elected, and to get elected, they need the votes of their constituents. However, if one person's vote is worth two votes, then that group becomes very attractive to politicians. The value of a rural vote is often twice as high as that of an urban vote. Rural areas are overrepresented in parliamentary elections. If there are 2.2 million farmers, that's 4.4 million votes for politicians.
 The problem of rural overrepresentation has been reduced since the 1987 system, when the difference in the value of the vote was nearly six times that of urban areas, but the privileges accumulated over 37 years have been further consolidated by the introduction of several systems through legislative amendments.
 Agricultural insurance, which aims to maximize losses from natural disasters and reduce the risk of growing weather-affected agricultural products to zero, has been subsidized by taxpayers' money to de-risk farmers, while high-tariff imports distort the market by making them uncompetitive and discouraging the urban poor from choosing cheaper imports. The direct payment system also disincentivizes farmers from engaging in “other industries” other than agriculture. If farmers are paid a certain amount of cash in taxpayer dollars just to farm, there is no incentive to try and be selected for other industries or to improve the productivity of the farming they are doing. Farmers get 9% of their insurance premiums subsidized by taxes, they get subsidized by taxes even if the price of their produce falls, they get a direct cash payment for doing their own farming, and they get to sell their produce at 7 times the price of imports, forcing the rural and urban poor to pay higher prices for their produce. Politicians provide low-risk, stable returns to rural farmers and politicians give them special favors. Taxpayers' money buys their tickets.
 As a result, urban and rural people are forced to eat the most expensive milk, bread, rice, eggs, and beef in the world. They are forced to pay high prices for our agricultural products, which are heavily subsidized by taxpayers' money and have lost their competitiveness, and they are unable to eat quality agricultural products from other countries at low prices. It is time to pursue strict urban-rural ‘vote equality’ and reform the system so that the majority of the people are not sacrificed for the benefit of a special group. The Korean Constitution does not allow for special classes, and farmers and fishermen should not be a special class under the Constitution.

Effects of presidential elections on accounting conservatism: Evidence from South Korea

AbstractThis study examines the effects of presidential elections (PEs) on firms’ accounting conservatism in Korea. The Korean president exerts great influence on the government's financial, monetary, subsidiary, and regulatory policies. At the same time, however, the Korean constitution prohibits the re‐election of the incumbent president. This simultaneously strong and fragile presidential system creates unique political uncertainty, which deteriorates the information gap between firms’ insiders and outsiders. According to the efficient contracting channel, accounting conservatism is expected to relieve information asymmetry by recognizing the economic losses faster than economic gains. But we posit that the effectiveness of accounting conservatism depends on the information environment within which they operate. If the information environment facilitates a compensation system for an increase in accounting conservatism under high uncertainty, managers may prefer to expand conservative accounting practices. However, if there is no such incentive mechanism, managers may opt to suspend accounting conservatism because the cost of revealing bad news increases during periods of uncertainty. Test results show that PEs encourage managers to delay rather than expedite the timely recognition of economic losses. This negative effect becomes more pronounced in firms with higher reliance on government contracts than firms with lower such reliance. We also find that Korean chaebol‐affiliated firms are likely to increase accounting conservatism during PEs. In general, US‐based studies support the positive relationship between information asymmetry and accounting conservatism, while this study demonstrates that this relationship can be reverse depending on the institutional environment.

북한 과학기술분야 법제 변화와 전망

Tpinnings.

스위스의 헌법개정절차와 사례에 대한 연구

In revising the constitution, there are various types of constitutional amendment procedures depending on whether or not popular initiative and referendum are introduced. For instance, Switzerland's constitutional amendment procedure has both popular initiative and referendum, but that of Korea does not have popular initiative.
 In Korea, a constitutional amendment and proposals to introduce a popular initiative to the Korean Constitution are being proposed. For example, in 2020, 148 lawmakers proposed a constitutional amendment bill to introduce a national initiative. In addition, the advisory committee of the National Assembly's Special Committee on Constitutional Amendment in 2016 and the Korean Constitutional Society in 2020 respectively proposed opinions to introduce a popular initiative. In improving the Korean constitutional amendment procedure, a popular initiative is being raised as a strong alternative.
 However, because Korean constitutional revision procedure has essential referendum and the Korean National Assembly has no right to amend the proposed constitutional amendment, if a popular initiative is introduced while maintaining the current revision procedure, considerable administrative costs and inefficiencies may happen. In other words, according to the introduction of the popular initiative, constitutional amendments may be frequently proposed, and after being referred to the referendum without amendment by the National Assembly, the referendum may be carried out in each constitutional amendment. According to a certain study, each referendum costs up to 150 billion Korean won.
 Switzerland has more than 130 years of experiences and various systems in operating both referendum and popular initiative as a constitutional amendment process. Therefore, this study would like to examine Switzerland's constitutional amendment procedures and cases, and to derive implications for the Korean constitutional amendment procedure.

사회변동과 입헌주의

Revolutionary social changes have led to reformations in the constitutional system of countries in human history. In this sense, Constitutionalism has had a direct impact not only on the countries and their people, but also on the lives of the mankind as a whole. Constitutionalism in the modern sense, a concept that is based on a society in which people are the masters of their own and that guarantees human freedom and rights, originates from the American Revolution of 1787 and the French Revolution of 1789. The bourgeois revolution brought about a fundamental social transition from monarchical sovereignty dominated by absolute monarchies to popular sovereignty. Modern constitutionalism has gone through many kinds of “challenges and responses”. Firstly, the industrial revolution of the 19th century led to the Proletarian Revolution. In the 20th century, after World War I, the world was split into people's democracy and liberal democracy. After World War II, the world was divided even more sharply. After the fall of the Berlin Wall in 1989, however, communist people's democracy virtually came to an end. In the early 21st century, as the 9/11 terrorist attacks made a new inflection point, the traditional legal system and legal theory also brought about fundamental changes. In addition, with the progress of the intelligent information society, drastic changes are coming to human life.
 The Constitutionalism which is resulted from gradual social reform in Britain and radical social reform in the United States and France, has been the model one for other countries in the world. Yet, the establishment of Constitutionalism is still far away in the Middle East and Africa. Constitutionalism in Latin America also remains unstable. Constitutionalism in Asia is entering a stable stage in many countries. The discussion on whether globalization of Constitutionalism, “Global Constitutionalism”, is feasible, will be enabled only by considering both the current situation of the human world and the present status of individual Constitutionalism in each country simultaneously. As each country is developing its own Constitutionalism, global Constitutionalism must substantially guarantee the freedom and rights of each members of people based on popular sovereignty. Since the actual meaning of Constitutionalism very diverse in each country and the essence of Constitutionalism, in some country, could be seriously distorted, Global Constitutionalism is still far away and its implementation is also unclear.
 Unlike the nature of revolution, Constitutionalism is an ideology that is established on the continuity of history. People should internalize constitutional values for the success of Constitutionalism. It is time to develop a theory based both on a general understanding of foreign constitutional theories and on the norms and reality of Korean Constitution. In other words, while being based on modern natural law theory that is the common value of the modern constitution, it must be based on legal existentialism which recognizes and adapts to the existential legal norms and legal realities that are unfolding in Korea. By doing so, a theory of balance can be established in the understanding and practice of constitutional law through the harmonious development of legal ideology and legal stability that are sought to be established in the contemporary era. Only when the Constitution, the country's basic law and highest law, is implemented in the country and breathes with the people, does the Constitution become the “people's charter for life.” At that time, the Constitutionalism of a democratic rule of law based on popular sovereignty can open the way for the rule of law to take root in the lives of the people.

교수의 자유에 대한 제한과 그 한계

This paper attempted to identify the possibilities and limits of restrictions on the freedom of professor’s lecturing, which is a constitutional right under the Korean Constitution, through a commentary on the Supreme Court's 2014Do3923 decision.
 The core issue of the 2014Do3923 decision commented in this paper is whether the professor's conduct of lecturing by distributing press articles unfavorable to a presidential election candidate as part of the lecture content and method can be considered a violation of the Public Official Election Act, in relation to academic freedom, especially the freedom of professor’s lecturing.
 Among academic freedoms, which are constitutional rights guaranteed under the Korean Constitution, there is little in-depth prior research on the scope or degree of protection, restrictions, and limits on the freedom of professor’s lecturing.
 The significance of the Supreme Court's 2014Do3923 decision is summarized as follows.
 First, this decision is significant as the first Supreme Court’s ruling regarding restrictions on the freedom of professor’s lecturing and its limits. In particular, there were almost no court rulings or decisions of the Constitutional Court that directly address the relationship between the freedom of professor’s lecturing and positive law or deal in depth with the content, possibility of restrictions, and limits of the freedom of professor’s lecturing. In this respect, the Supreme Court's 2014Do3923 decision directly addresses the relationship between the freedom of professor’s lecturing and the Public Official Election Act, and argues in depth the content of the freedom of professor’s lecturing, the possibility of restrictions, and its limits. It can be positioned as the ‘first’ Supreme Court ruling that ‘directly’ addresses the possibility of restrictions, and its limits.
 Second, the legal principles regarding the restrictions on the freedom of professor’s lecturing and their limits presented in this ruling can present theoretically and practically meaningful judicial judgment standards in actual cases related to the freedom of professor’s lecturing in the future.

마약범죄의 형사법적 대응에 관한 고찰

Article 12 (1) of the Korean Constitution accepts the principle of due process as a constitutional principle. The principle of due process stipulates the basic principle that criminal proceedings should be regulated in terms of guaranteeing basic rights. Therefore, if the investigation by the investigative agency violates the principle of due process, it is illegal. An investigation may conduct an investigation necessary to achieve its purpose (Article 199 (1) of the Criminal Procedure Act).
 However, even if the necessity of such an investigation is recognized, it cannot be allowed if the means of the investigation are not equivalent to the purpose. As a general principle of investigation, the principle of considerability of investigation or proportionality of investigation is derived from the principle of due process. Specifically, the means should be suitable for achieving the purpose of the investigation (the principle of suitability), and the necessary means with the least infringement (the principle of minimum infringement), and there should be a balance between the benefits of achieving the purpose of the investigation and the benefits infringed by the investigation (the principle of balance).
 Currently, drug crimes have difficulties in detecting criminals and collecting evidence due to the wider area and the trend of intelligence due to informatization. As a means of this, the need for a trap investigation will increase further. Nevertheless, it should be legally allowed only to the extent that it complies with the principle of due process and the principle of considerability or proportionality of investigation under Article 12 (1) of the Constitution.

기후변화와 인권

Climate change is distinct from natural disasters. It is caused by man-made carbon emissions, and at the same time it can be mitigated by man-made efforts to reduce greenhouse gases. Therefore, the damage caused by climate change should not be treated like a natural disaster. Governments and the international community are held accountable for the damage caused by climate change. Also, climate change is not just an environmental problem. Climate change affects essential aspects of individuals' lives. Individual rights can be immediately jeopardized by climate disasters and threatened in the long term by the cumulative effects of climate change. And these risks of climate change are more than temporary, they are increasing and ever-present risks. This is why the responsibility of the state to protect individuals from the dangers of climate change arises. To prevent the harms of climate change, we need to start the discussion from the perspective of ensuring climate rights. I would like to explain that states have an obligation to prevent climate change and to maintain a level of human rights. In order for climate rights to be guaranteed through domestic judicial procedures, the possibility of guaranteeing them through constitutional litigation should be examined. The content of climate rights is not directly stipulated in the Constitution. However, I argue that by interpreting the Korean Constitution, we can derive from the Constitution the obligations of the state to guarantee climate human rights, and then examine whether the state has properly fulfilled its obligations to guarantee climate rights. The climate human rights that are required to be protected from the risks of climate change can be specifically described as the fundamental rights under our Constitution: the right to life, the right to physical and mental health, the dignity and worth of the human person, the right to freedom of action in general, and the right to the environment. In addition, through the interpretation of the content of the fundamental rights guaranteed by the Constitution, the content and subject of the rights to be protected by the climate right should be expanded. Therefore, it is necessary to encompass the contents of climate human rights as a new human right requested to respond to the current climate crisis situation.

Critical Review about Parricide Crimes of Korean Criminal Law

Purpose: In recent years, the number of infanticide cases has been steady at around 30 per year and the number of toddler murders at around 10 per year, which are generally punishable as ordinary murder. Also Crimes against immediate family members are subject to aggravated penalties. A person(descendant) who kills a member of his or her own or his or her spouse's immediate family is guilty of subsistence murder, which is punishable by death, life imprisonment, or imprisonment for seven years or more. This is a more severe offense than ordinary murder, which is punishable by death, life imprisonment, or imprisonment for five years or more. Most survival-related violent crimes, such as injury, assault, abandonment, abuse, arrest, confinement, and intimidation, have aggravated penalties. However, under the current law, there is no provision for aggravated punishment for violent crimes against direct survivors. There is an aggravated punishment for the murder of a direct survivor by a direct descendant, but there is no aggravated punishment for the murder of a direct descendant by a direct descendant. The Korean Constitution stipulates that “no one shall be discriminated against on the basis of social status”, which may violate the Equal Rights Clause of Article 11 of the Constitution. In other words, it is unconstitutional because it may constitute “discrimination based on birth”. Therefore, we would like to critically examine whether the Korean criminal law should continue to provide for the offense of feticide.
 Method: The aggravated punishment of capital murder is one of the most controversial issues in society. In this critical review of the aggravated murder penalty, we will first look at the Constitutional Court's decision on the aggravated murder penalty. Second, we will look at the arguments in favor of and against the aggravated penalty of capital murder. Third, we will examine the current state of affairs through a comparative legal review of foreign jurisprudence on the aggravated punishment of capital murder. Fourth, the legal, moral, and religious perspectives on the aggravated punishment of capital murder will be discussed. Fifth, based on the above discussion, we will provide a direction on whether to abolish the aggravated penalty of capital murder.
 Results: It is recommended that the aggravated punishment for survival murder be abolished as it violates the right to equality under the Korean Constitution. Even if it is abolished, the purpose of the punishment can still be realized through judicial modification.
 Conclusion: In light of the meaning and legislative purpose of the provision that aggravates the crime of intentional homicide, it cannot be said that the legislative act of selecting a comparative standard, i.e., that intentional homicide is more severely punished than ordinary homicide in the Korean Penal Code, is unconstitutional. However, while the criminal laws have the same criminal offense of killing a person, there is a difference in the 'presence or absence of paternity'. The abolition of capital murder is consistent with the principle of proportionality. It would be contrary to the principle of proportionality to impose severe restrictions based on prosecutorial convenience. For these reasons, it would be a violation of the constitutional principle of equality, and even if it is not unconstitutional, it is difficult to see that it reflects constitutional values such as the principle of equality.

헌법상 재판청구권의 관점에서 현행법상 비밀수사 관련 통지·불복절차의 개선 방안에 대한 연구

Considering the purpose of the Constitutional Court's decisions 2012Hun-ma191 (June 28, 2018) and 2016Hun-ma388 (July 21, 2022), which emphasized the importance of post-notification in the case of a secret investigation, and decision 2016Hun-ma344 (August 30, 2018), which saw the defective remedial procedure as an infringement of the right to judicial process, the subject of investigation should be able to request effective remedial procedures to be examined by the court for the illegality of investigative acts during the investigation process, and on the premise of that, the investigative authority should notify that fact. This is a constitutional right derived from the right to judicial process under Article 27 (1) of the Korean Constitution. Therefore, not only the legislative form that has not prepared all notice and objection procedures, but also the legislative form that only has notice procedures but does not has objection procedures violates the right to judicial process of the subject of investigation.
 Accordingly, the notice and objection procedures under current law on secret investigations should be revised. It would be most desirable to stipulate all statutory provisions on secret investigations and the notice and objection procedures in the Criminal Procedure Act, as in Germany. However, considering the reality in Korea, where special laws have already been mass-produced, the notice procedures should be reorganized in individual special acts as they are now, but at least with regard to the objection procedure, as in Austria and Switzerland, a single provision should be placed in the Criminal Procedure Act to pursue the unity of the legal system.

국경간(國境間) 표현의 자유에 관한 비교법적 연구

While technological developments are rapidly facilitating the cross-border exchange of ideas and information, the Korean legal system continues to differentiate the treatment of domestic speech and cross-border speech. Various restrictions on grounds of expression are imposed regarding the physical movement of people and objects as well as internet speech that transcend borders. The Korean Constitutional Court has yet to explicitly acknowledge the constitutional status of cross-border expression, and the gap between protection of domestic and cross-border speech remains unaddressed. In contrast, the US Supreme Court ruling Lamont v. Postmaster General(1965) acknowledged the right to receive foreign mail under the First Amendment. Also, Holder v. Humanitarian Law Project(2020) acknowledged that content-based restrictions of speech under the direction of, or in coordination with foreign groups are subject to heightened scrutiny. The German Constitutional Court ruling of the case Leipziger Volkszeitung(1961) acknowledged the right to receive foreign information under Article 5 of the Basic Law, and in the case Ausland-Ausland-Fernmeldeaufklärung(2020), the German Constitutional Court clarified that fundamental rights vis-à-vis the German state authority is not restricted to German territory - the German state authority is bound by fundamental rights even when acting against foreigners in foreign territory. This article analyses the above decisions along with others from the US Supreme Court, the German Constitutional Court and the European Court of Human Rights with the aim of extracting lessons that may be applicable in establishing the constitutional status of cross-border speech under the Korean Constitution. Similarly to the foreign examples, the Korean Constitutional Court may be able to justify the constitutional protection of cross-border speech based on its former justification theories regarding domestic speech, and also considering international human rights standards. This can serve as a starting point for a broader and more substantial perspective of the freedom of speech that will be able to address its increasingly international aspects.

위헌심사기준으로서 헌법 제22조 제2항의 의미와 내용

Article 22, Paragraph 2 of the Constitution stipulates that “the rights of authors, inventors, scientists, and artists are protected by law”. Despite being a provision that has continued since the Constitution's establishment, there has not been enough discussion in the constitutional academic community regarding its normative meaning and function, relationship with other fundamental rights, especially property rights, and concrete criteria for constitutionality review. Recently, in a case in which the Court reviewed the constitutionality of Article 9 of the Copyright Act, Article 22, Paragraph 2 of the Constitution was applied. As a result of this decision, discussions on the normative meaning of Article 22, Paragraph 2 of the Constitution and its standard for constitutionality review were triggered in the constitutional law academia. These discussions are mostly related to whether Article 22, Paragraph 2 of the Constitution has a unique meaning and performs an independent function, its normative meaning, and the concrete standard for constitutionality review. However, many ambiguous aspects remain. Therefore, this article examines the normative contents of Article 22, Paragraph 2 of the Constitution. The composition of this article is as follows. First, as a starting point, the meaning and limitations of the decision of the Court are examined. Second, by examining the US Supreme Court's doctrine about the copyrights clause and related discussions, this article seeks applicability of it to the interpretation of the Korean Constitution. Third, based on this, it critically reviews the recent discussions in constitutional law academia and offers the contents of Article 22, Paragraph 2 of the Constitution as a standard for constitutionality review.

남북 통일과정에서의 ‘군대의 정치적 중립성’에 대한 고찰

It is difficult to predict the process of inter-Korean unification. However, we cannot abandon standards as principles of popular sovereignty, liberal democracy, respect for basic human rights, rule of law, and pacifism in our Constitution. In order to maintain these standards, it is necessary to think about controlling the armed forces of the two Koreas. Regarding the control of the armed forces of the two Koreas, it is necessary to review the legal system for military integration, but the scope is very wide. In this study, I look at the ‘political neutrality’ of the military, which is a prerequisite for unification and military integration. Because the military follows orders and obedience, it can move arbitrarily by specific people or political forces in some cases. Therefore, in the unification process, it is necessary to standardize the military's political neutrality in the unification agreement and the unification constitution, and to define the act of undermining political neutrality as unconstitutional and illegal. On the other hand, the military's political neutrality, which must be considered in the unification process, is largely divided into two categories. The first is neutrality from political intervention in the election process, and the second is neutrality from military intervention (coup). This concept must be carefully reviewed and implemented in order to ensure that the basic principles and principles of our Constitution are observed in the process of unification. In particular, when examining North Korea's electoral system and military system, the Korean People's Army, led by the chairman of the State Council, is highly likely to undermine the constitutional value of a unified nation. Therefore, measures to prevent this in advance must be stipulated in the Unification Agreement and the Unification Constitution by referring to the South Korean Constitution and subordinate laws.

미국 연방불법행위청구법(FTCA)상 재량기능 예외와 그 시사점

On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.