Jeong-In Yun

The Korean Constitution’s political party clause(party clause) and party legislation which were designed during the authoritarian regime have since shaped the reality of party politics and the party system so far. Particularly, the theoretical background and legal argument that formed the basis for such party regulation still impact constitutional jurisprudence and judicial practice. This article thus explores a way forward to get out of the wrong path paved in the past that has led the Korean malfunctioning party politics. In scholarship and politics, the problem regarding the interpretation and reform of party law – ie. ‘Political Parties Act’ – that regulates the political parties has been actively discussed. Relatively, however, any intensive discussion on the party clause in the Constitution which justifies such party regulation was rare. So, in the first place, bringing a new perspective to the interpretation of the party clause would be necessary in terms of de constitutione ...

A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, t...

Changes in reality influenced by globalization lead to a new challenge in constitutional jurisprudence. This article focuses on the usefulness of comparative constitutional law. The problems of constitutional law shift from within the national sovereign state to various and complicated global issues. This makes the constitutionalists think over the possibilities of transnational exchange and its method.
Comparative constitutional law means the application of foreign laws, foreign cases, international law and its cases when interpreting the domestic constitution. In other words, comparative constitutional law refers to transnational cross-reference between the constitutions. Nowadays it becomes necessary to develop the methodology and rule of use in this field.
Here I discussed mainly the possibilities of the use of foreign law in constitutional adjudication. There are normative problems such as lack of the binding force as a legal source, deficit of democratic legitimacy as well as factual problems such as language barrier, the difficulty of selecting cases and arbitrary selection of materials. If we understand sufficiently and respect the constitutional context of each nation, and apply carefully its text and case laws, comparative constitutional law could contribute to the constitutional interpretation.
Comparative constitutional law gives us a wider view of knowledge and helps us to realize not only supranational issues at the global level but also domestic issues caused by rapid changing reality. Therefore, we must take comparative constitutional law more seriously.

During the US military government right after the liberation from Japan in 1945, there were about 300 political parties emerged which were comparable with the number of parties in the UK, France and Deutschland these days. But 70 years later, there exist just 20 parties and the average life span of the parties is about 3 years. Worse, new parties or relevant third parties are hardly enter the scene. This article examines why we cannot have enough political parties in the political sphere and we cannot choose a certain party to support accordingly.
First of all, I searched the content of party clauses in the Constitution and Political Party Act and its historical background concerning the establishment of political parties. The reason why a guarantee of the freedom of establishing political parties sufficiently consisted of institutional factors and non-institutional factors and I tried to focus on the former in this article. Then, To guarantee the freedom of establishing political parties enshrined in Article 8 in Korean Constitution and to promote robust party politics, I propose four premises to interpret and apply the clauses. As everyone knows the political parties play a key role in representative democracy and competition among various parties should be protected. Therefore, the state should not intervene the party politics excessively nor should interfere the establishment of the parties. If the State do so, it results in distorting normal competition among the parties and recession of democratic mechanism. In this perspective, the system of registration, rigid requirements of registration and revocation of registration of political parties under Political Party Act is highly likely unconstitutional, or at least infringement of the freedom to establish political parties seriously.

Women’s under-representation in politics, particularly in the representative body like elected assembly has been widely debated for decades in modern representative democracies. From a perspective of descriptive representation, the composition of the parliament has come to the center of the debate. This problem has been commonly recognized, debated and developed in terms of gender inequality and thus the movement for enhancing women’s participation in the parliament has been led by feminist scholars and women’s rights activists. With help of them along with the development of the international human rights norms, gender quotas in the election have been widely introduced to the countries. Nevertheless, it is still far from achieving equal representation of women in any country. Furthermore, legal disputes and political resistance against gender quotas as affirmative action are not settled. In this paper, I suggest a transition of viewpoint on women’s under-representation in the parliament into the distortion of political representation and democratic deficit. On basis that, I advocate gender parity in the parliament, rather than a minimum number of women, as a requirement for achieving more democratic representation. I argue gender parity is not unconstitutional but rather corresponds to representative democracy. Practically, some countries already have adopted the parity principle at the legislative level or constitutional level for more than a decade. In this paper, I also explore the comparative cases of Greece, Belgium, France, and Germany to find the best way to institutionalize the gender parity principle in Korea and propose to adopt it in the Constitution.

The form of democracy adopted by the Korean Constitution is a representative democracy in principle. Yet, it is nonsense to deem representative democracy functions sufficiently even when the representatives do not truly represent the constituents. When it comes to combining the free mandate theory with representative democracy, the state of democracy becomes more questionable.
Korean democracy has remained in a stalemate even after the democratic transition in the late 1980s. To make a breakthrough and upgrade the Korean democracy in light of sustainability, a key solution would be actualizing a representative function of the representatives such as the President and the parliament and an intermediary function of the political parties who intermediate between the representatives and the people who are represented. To ensure that, the representatives should work on a transparent basis and should be responsive to the will of the represented, which was formed by enhanced transparency. When the representatives deviate too much from the represented and therefore lose trust granted by them, the representative body or person should be accountable. In this way of ensuring transparency, responsiveness, and accountability of the representatives, i.e. democratizing the representation, we can look for sustainability in our democracy.
In this paper, I revisit the free mandate theory and then explore the institutional way to actualize the representative function performed by the President as an individual representative and the parliament as a collective representative in place, and the intermediary function by the political parties.

Keywords: Representation, Representatives, Parliament, President, Representative democracy, Transparency, Responsiveness, Accountability

A judiciary power abuse scandal is shaking the whole country. This scandal is the judicial influence-peddling that the National Court Administration under the Chief Justice of Supreme Court of Korea made deals with the government officials in order to establish the Appellate Court and seriously abused the judiciary administration power by contacting the courts dealing with specific trials, making certain requests, inspecting the judges who were critical of the judicial administration, and even suppressing them. After the investigation by the Court, the former Chief Justice and the former National Court Administration Deputy Director were arrested and other judges involved were submitted to a disciplinary measure. Apart from that, however, it is claimed that the judges should be impeached considering the public’s grave distrust of the Judiciary.
Judicial independence and the guarantee of the judges’ status are not the ends per se, but means to an end: fair and impartial adjudication. A fair trial is a cornerstone of the Rule of Law, so the Judiciary therethrough has an obligation to serve the people who delegated the judicial power to the judicial branch. When the judge abuses his/her judicial power or his/her behavior is beyond the purpose of delegation, judicial accountability matters. In this regard, this article explores the institutional significance and distinctiveness of judicial impeachment. And this article explains the grounds and procedures of the impeachment proceeding and then, applies them to the present judiciary power abuse scandal.

Key Words: Impeachment and removal of Judges, judicial impeachment, independence, of the judiciary, judicial independence, judicial accountability, judicial scandal, judicial discipline

A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘Urteilsbeschwerde’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde (Parteiantrag auf Normenkontrolle)’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.

Yun, Jeong-In. "Constitutional Review Complaint as an Evolution of the Kelsenian Model" ICL Journal, vol. 14, no. 4, 2020, pp. 423-446. https://doi.org/10.1515/icl-2020-0024

Comparative constitutional amendment is developing into an eye-catching discipline in comparative constitutional law. This article reviews Richard Albert’s book 'Constitutional Amendments: Making, Breaking, and Changing Constitutions' that comprehensively and comparatively covers almost every aspect of the constitutional amendment. This book, focusing on formal constitutional amendment, starts with why and how constitutional amendment rules matter, moves to what elements matter in amendment procedures, and then finally presents some considerations for the design of democratic amendment rules. This article reviews the chapters of the book one by one and, at the same time, discusses Albert’s original arguments and concepts from a normative perspective. Firstly, I examine and challenge the “dismemberment,” which the author conceptualizes and terms as distinguishable from the “amendment.” I add my view to the author’s take on amendment culture, which he explains as an important informal factor of amendment difficulty. I also argue and present a positive assessment of unamendability and courts’ involvement thereon, on which the author looks unfavorably. Nonetheless, various issues and comprehensive cases across regions and time unfolded in this book give us incomparably useful insights on how to design constitutional amendment rules for each jurisdiction. Moreover, it provides valuable agendas and thinkable examples for us to contemplate what ‘constitutionalism’ covers in a time when constitutional amendments are employed as a political tool on all sides. In this respect, this article also introduces a specially designed amendment clause of the South Korean Constitution, which disincentivizes the term limits amendment. Finally, this article tries to get closer to the problems which constitutional amendments (and constitutionalism) recently encounter by adding a normative perspective to Albert’s theoretically, doctrinally, historically, empirically, and comparatively thought-provoking book.

Historically, in spite of many chances to amend the Constitution after the revolution and people’s sacrifices, people could not participate in the actual constitutional amendment processes. The ‘Candlelight Revolution’, in which nearly 17 million people participated without any physical conflicts, finally led the impeachment of the former president and the election for new president. In respect that the revolution achieved the goal by lawful means instead of violence, it means a peaceful revolution combining legitimacy with legality. Now it’s time to discuss how to amend the Constitution, as a result of the revolution, to contain the people’s sovereign will and consensus more than ever.
Recently around the world, there is a new trend in constitution-making to focus more on the ‘process’ rather than the ‘contents’ of the constitution. We can also find the constitution-making cases with people’s wide participation through online in Iceland, Ireland, and Mexico City. With people’s participation in constitution-making process, the legitimacy of the new constitution and the stability of constitutional order could be enhanced, and civic education through the process itself could be possible, thereby fostering authorship and ownership of the new constitution. In addition to that, the new constitution could get a chance to accept fresh and useful contents from people’s diverse ideas which reflect the spirit of the times, and national integration could also be expected.
This essay proposes a council for constitutional amendment led by ordinary people, not by a small group of politicians or parliament, fit for participatory and deliberative constitution-making. In order that the parliament and the government should make a law to provide financial support and personnel to the council. The members of this council should firstly prioritize the main values and themes for the new constitution. And then, the council should aim to make a draft after receiving suggestions from the public using the online/offline platform and providing feedback to them. If the final draft is made, it should be submitted by President to the parliament for voting and then to a national referendum according to the constitutional amendment process prescribed in the present Constitution. If we could make a new constitution through this process, it means that we achieve a ‘revolutionary constitution-making’ by combining substantial legitimacy with formal legality, which is unprecedented in history.

Party democracy in Korea is not functioning properly. In many countries, populist parties are rising dramatically. Such recent phenomenon around the world could be captured with a word: ‘Populism’. ‘Populism’ is not a strange concept in the field of politics. Generally, populism is understood negatively as a political pathology or a political strategy which incites and deludes the people. Meanwhile, the populism also has positive aspects in that it leads the politicians to reflect themselves and activates the democracy in some degree.
This article focuses on populism’s rise around the world nowadays and the common cause of it. When the people dissatisfied with or feel disgusted at the established politicians, and when social and economic polarization gets serious, the people think that the established politicians are not their true representatives any more and vote for the populists or populist parties. The populists (and the populist parties) propose a simple solution to the serious problems in the society irresponsibly and show hostility toward a certain group of people to gain popularity, hereby they could cause social conflicts and violate important constitutional values. In this situation, the people were degraded to the instrument of the populists.
Concerning the special factors which activate the populism in Korean party politics as well as the tendency of populism in Korea, this article points out political, economic, social and cultural conditions as well as the basic problems of political parties in the Korean context. In Korea, not only the people but also the politicians do not fully understand democracy, therefore, do not familiar with the various ways of public participation. Moreover, there are many legal barriers which obstruct people in participation in politics. In conclusion, this article suggests the ultimate solution to overcome a crisis of party democracy caused by populism: more civic education and more political participation of the people.

The most powerful way of exerting sovereignty in the constitutional
democratic state is making or remaking of a constitution. The people, who have authority over the constitution, is the final source of legitimizing the constitution-making. Regarding the establishment of a constitution is qualitatively different from the establishment of other lower norms, the legitimacy of the constitution ought to stem from the people’s will. Thus, it is not enough to legitimize the constitution-making process formally and indirectly by the representatives, or rather, the people must legitimize the constitution-making substantively and directly.
Recently the Korean people broke through the constitutional crisis by active participation in politics: so-called “Candlelight revolution”. So it is required as well as it is a requirement from the people, who certainly created the constitutional momentum, to participate in the constitutional amendment process, which means redesigning the country. However, neither the Korean Constitution nor the current steps to amend the Constitution by the government and the parliament guarantee the people’s substantial participation in the process of constitutional amendment. But, in fact, many physical and technical conditions which set the limit on the direct democracy has changed. Moreover, in the comparative perspective, constitution-making cases with crowdsourcing measures in Iceland, Ireland, and Mexico City are very inspiring and encouraging.
To sum up, this paper will commit to the democratic legitimacy in the
constitution-making and emphasize that the upcoming constitutional amendment should be led by the people, considering the constitutional momentum in Korea. Accordingly, this paper will introduce comparative cases which performed the crowdsourcing constitution-making and will discuss the applicability and the benefits of the constitution-making process with public participation in Korea.

Concerning political and social reform of Korean society after the ‘Candle revolution’ and impeachment of a president, the civil society and the political sphere show different approaches to the problem. The people (or citizens) assembled and marched with candles in their hands on the square longing for constitutional government and better society, and consequently, the head of government who lost the people’s trust was removed from the office. This brought our society an opportunity to discuss the new constitutional order – in other words, we encountered a ‘Constitutional momentum’. The Special Committee on the Constitution, which was constituted in the Parliament at the end of last year, tried to proceed a quick process of constitutional amendment whereas most citizens are not in agreement. So the history of ‘revolution by the people’ and ‘constitution-making without the people’ is about to repeat itself. Constitutions in democratic countries are people’s documents and therefore gain legitimacy by people’s participation in the constitution-making process. Moreover, constitution-making in accord with the constitutional momentum driven by the people should be accomplished by the people and for the people.
This paper introduces the Iceland’s constitution-making case after an economic crisis in 2008. Confronting unprecedented financial crisis and inefficient action by government, Icelandic people were deeply disappointed with political elites and looked back on the ground of the society, and then they decided to make a new constitution for re-establishment of social values. Many people participated in the process of constitution-making, from the very first step to decide what were the most important values in the country and should be included in a new constitution and then they participated also in the next step to produce a draft. The most innovative and revolutionary point in democratic perspective in the process was that the draft for a new constitution was written with direct participation of its people for the first time in history. The internet and social media made it possible to make a crowdsourced constitution. The Iceland’s constitutional experiment, which combines the trust of collective wisdom with internet communication technology for constitution-making, is full of suggestion concerning current discussion of constitutional amendment – without citizens – in Korea.