Constitution

The Constitution of the Republic of Korea (대한민국 헌법/大韓民國憲法) provides for the fundamental rights of Korean citizens and the establishment and operations of the government. The supreme law of the Republic of Korea was passed by the National Assembly on July 12, 1948 and promulgated five days later on the July 17, the "Constitution Day" (제헌절/制憲節). It has gone through many revisions in the governing structure up to nine times so far.

The current Constitution was amended on October 29, 1987, and is characterized by introduction of a direct presidential election system and establishment of the Constitutional Court.

The Constitution consists of a Preamble, 10 Chapters and 130 Articles of the main body/supplementary provisions, and six Articles of the Addenda. The Preamble (전문/前文) illustrates the historical establishment as well as the basic ideals upheld by the Constitution.

The main body of the Constitution provides the basic rights and responsibilities of a State in ten chapters: Chapter 1 General Provisions; Chapter 2 Rights and Duties of Citizens; Chapter 3 the National Assembly; Chapter 4 the Executive; Chapter 5 the Courts; Chapter 6 the Constitutional Court; Chapter 7 Election Management; Chapter 8 Local Autonomy; Chapter 9, the Economy; and Chapter 10 Amendments to the Constitution.

Key words
Constitution, democracy, fundamental rights, government, economic order

Preamble and General Provisions
The Preamble (전문/前文) of the Constitution not only states the traditional inheritance of the Provisional Government of the Republic of Korea, stationed to China during the days of Japanese occupation, but also declares as indices of a new national order the principle of popular sovereignty, national democratic reform and the reinforcement of a liberal democratic order, succession of the democratic ideals invisaged in the April 19 Revolution (indirect expression of resistance), realization of a just welfare state, strife for nationalism, and the pursuit of peaceful unification and world peace.

The General Provisions (총강/總綱) declare the form of state as a democratic republic and the principle of popular sovereignty (Article 1), and enact a provision reinforcing the duty of the State to protect citizens residing abroad. Article 1(2).

In Article 3, it is indicated that "the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.

In Article 4, the provision "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" was added. In Article 5(2), the maintenance of political neutrality of the Armed Forces are mentioned for the first time in addition to the duty of the Armed Forces to guarantee national security and to defend the land. With regard to political parties, it is prescribed that not only the organization and the activities, but also their objectives must be democratic. Article 8(2). And if the purposes or the activities of a political party are contrary to the fundamental democratic order, the political party shall be dissolved in accordance with the decision of the Constitutional Court. Article 8(4).

Fundamental Rights
The distinct characteristics of the chapters on rights and duties of citizens are the expansion of procedural guarantees to reinforce the freedom of a person to the maximum, the improved freedom of expression, and new types of social fundamental rights.

First, it assures human dignity, respect for values, the right to pursue happiness and the fundamental and inviolable human rights of individuals. Article 10. It also prohibits violation of the essential aspects of freedoms and rights thereby specifying that fundamental human rights are natural or inherent rights. Article 37(2) Moreover, right to equality is provided so that all citizens shall be equal before the law and shall not be discriminated without a just or reasonable cause. Article 11

Fundamental rights with regard to civil liberties are stipulated as personal liberty, Article 12; freedom of residence and the right to move at will, Article 14; freedom of occupation, Article 15; freedom of privacy in residence and correspondence, Articles 16 through 18; freedom of conscience and religion, Articles 19 and 20; freedom of speech, press, assembly and association, Articles 21 and 22; freedom of learning and the arts, Article 22; guarantee of the right of property, Article 23, etc. Also, those freedoms are not enumerated in the Constitution shall not be neglected. Article 37(1) Fundamental rights pertaining to the right to claim include right to petition, Article 26; right to be tried, Article 27; right to claim criminal indemnity, Article 28; right to claim for compensation of the state right to claim for compensation of loss, Article 23(3); right to claim for aid for victims of crimes, Article 30; right to request judgment on the constitutionality of a law, Article 107(1); and the right to claim adjudication on a constitutional appeal. Article 111(1). The article regarding political fundamental rights provides for the right to vote and the right to hold a public office. The age of the voters is to be prescribed by the law. Article 24

Social fundamental rights consist of the right to receive education, Article 31; right to work and to receive minimum wage, Article 32; right to independent association, collective bargaining, and collective action, Article 33; right to be entitled to a life worthy of human beings, Article 34(1); right to be entitled to social security and welfare, Article 34(2) through (6); right to a healthy and pleasant environment, Article 35; and the right of all citizens to have their health protected by the State. Article 36(3)

Structure of Government
With regard to the fundamental structure of government, check and balance is maintained by reasonably adjusting the authority of the President, reinforcing the authority of the National Assembly and activating its function, and by newly implementing the institutional system for the independence of judicial power.

National Assembly
The convening requirements of extraordinary sessions of the National Assembly have been eased from one third to one fourth of the total members, the period of regular sessions have been extended from 90 days to 100 days, and the restricting regulations on the yearly number of sessions have been deleted. Article 47.

In the case of two or more candidates receiving the same largest number of votes in the Presidential election, the National Assembly will conduct an indirect election. Article 67(2).

In order to allow the National Assembly to inspect the affairs of state or investigate specific matters of state affairs, the right to inspect and investigate state administration has been reinstated. Article 61.

The right to vote on the dismissal of the Prime Minister or a State Council member from office has changed to the right to recommend dismissal. Article 63.

Administration
In 1980, the method of Presidential election changed from the indirect election system by an electoral college to the direct election system by the people, to guarantee the people's right to vote in selecting their government. If and when there is only one presidential candidate, at least one third of the total eligible votes is needed to become elected president. Article 67(3). However, the lack of a provision regarding the necessary ratio of votes while adopting the direct election system may be considered a defect of the legislation.

The provision which stated that a minimum five years of residence in Korea is required in order to be eligible for the election stipulated in the Constitution of 1980 has been deleted. In the case of vacancy occuring in Presidential office, a successor shall be elected within sixty days. Article 68

The term of office of the President shall be five years, and the President shall not be reelected so as to prevent the harmful consequences of the long-term seizure of power by one person and to build the foundations for a peaceful transition of government. Article 70.

The rights of the president to take urgent measures and to dissolve the National Assembly have been deleted, but at the same time, the rights to issue urgent orders, to take financial and economic actions, and to issue orders have been newly added in the case of national emergency so as to reasonably adjust the authority of the President. Article 76

The President's consultative body, the Advisory Council on State Affairs, is renamed as the Advisory Council of Elder Statesmen and the Advisory Council on Democratic & Peaceful Unification to the National Unification Advisory Council. Articles 90 and 92. The National Economic Advisory Council is newly established. Article 93

The Prime Minister shall assist the President and shall direct the Executive Ministries under order of the President. Article 86(2). This form of the Prime Minister is rarely in a presidential system of government. The Prime Minister is a public official who is appointed by the President. He/She directs the Executive Ministries under order of the President, and thus differs entirely in character from the Prime Minister in a parliamentary system who is elected by legislature and is the actual head of the Executive Branch.

Each executive Ministry executes administrative power that is invested in the President and the Executive Branch. They are administrative offices, since they are central administrative bodies that execute policies decided by the president through deliberation of the State Council and other matters pertaining to the Executive Branch.

For the President is elected by the people and executes executive policies among the nation's policies through the Executive Ministries, in relation to the President, the Executive Ministries are in direction and submission to the order of the President.

Court
The Chief Justice of the Supreme Court shall be appointed by the President with the consent of the National Assembly. The Supreme Court Justices shall be appointed by the President with the recommendation of the Chief Justice and the consent of the National Assembly. Judges other than the Chief Justice and the Supreme Court Justices shall be appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices. Article 104

No judge shall be removed from office except by impeachment, or a sentence including imprisonment without forced labor or heavier punishment. Article 106(1)

Such improvements in the appointment procedures and reinforcements in the guarantee of status contribute to strengthening the independence of the judicial branch.

Constitutional Court
The Constitutional Committee from 1980 is to be replaced by the Constitutional Court composed of nine Justices.

It shall have to have jurisdiction over the constitutionality of a law, impeachment, dissolution of a political party, competence disputes, and constitutional complaints so as to revitalize the Constitutional Court system, to strengthen legal guarantee of fundamental rights, and to seek a legal solution to consttutional disputes. Article 111(1)

Local Autonomy
The local autonomy (지방자치/地方自治), is defined in Chapter 8. Articles 117 and 118 There are no reservation clauses in the addenda regarding the local government system like the Constitution of 1980.

The local government system intends to realize "grass roots democracy" and make the functional control of power effective. The local goverment administers the residents' property and welfare-related issues.

The residents directly vote for the regional congress, a legislative organ, and the president of the local government, an executive organ, in order to establish regulations on local autonomy within the boundaries of the statute.

Economic Order
With regard to the economic order (경제질서/經濟秩序), it is to be based on the capitalistic free market economy that respects freedom and creativity of individuals and enterprises. At the same time, the order intends to democratize the economy by maintain the balanced growth of the local economy, ensuring proper distribution of income, and prevent abuse of economic power. Regulations and adjustments may be enforced to realize these purposes. Article 119 Thus, as a whole, it aims to create a social market economy.

The basic economic policies include the following:
 * Based on the land-to-the-tillers principle, tenant farming shall be prohibited: Article 121(1)
 * The State may impose, under the conditions as prescribed by Act, restrictions or obligations necessary for the efficient and balanced utilization, development, and preservation of the land of the nation that is the basis for the productive activities and daily lives of all citizens; Article 122
 * The State shall establish and implement a plan to comprehensively develop and support the farm and fishing communities in order to protect and foster agriculture and fisheries; Article 123(1)
 * The State shall have the duty to foster regional economies to ensure the balanced development of all regions; Article 123(2)
 * The State shall endeavor to stabilize the prices of agricultural and fishery products by maintaining an equilibrium between demand and supply of such products and improving their marketing and distribution systems; Article 123(4)
 * The State shall foster organizations founded on the spirit of self-help among farmers, fishermen and businessmen engaged in small and medium industry, and shall guarantee their independent activities and development; Article 123(5)
 * The State shall strive to develop the national economy by encouraging innovation in science and technology, and by developing information and human resources; Article 127(1) and
 * The state shall install the National Economic Advisory Council, etc. and thus these policies contribute to promoting social justice in the economic sector and the realization of economic democratization. Article 93

Constitutional Amendments
Whether they are proposed by a member of the National Assembly or the President, the proposed amendments to the Constitution shall be subject to a national referendum after the decision is made by the National Assembly (Article 130(2)), making amendments difficult.

Also, amendments to the Constitution for the extension of the President's term of office or for the reelection of the President are not applicable to the President in office at the time of the amendment's proposal so as to institutionalize the peaceful change of government and the prevention of a prolonged one-person rule. Article 128(2)