ADOPTION OF DUE PROCESS CLAUSE IN THE KOREAN CONSTITUTION AND THE DEVELOPMENT OF THE PRINCIPLE

In England, the Magna Carta of 1215 provided that no one shall be deprived of life, property, or other individual rights except �by the law of the land’ (Art. 39 of Magna Carta in 1215).

All citizens shall enjoy freedom of body. No person shall be arrested, detained, searched, seized or interrogated unless it is so authorized pursuant to statute. No person shall be punished, subject to preventive restrictions or forced to labor unless it is so authorized by a statute and due process of law.

And Art. 12 Sec. 3 prescribes, �For arrest, detention, seizure or search a warrant issued by a judge in due process of law upon request of a prosecutor shall be presented...’.

1. The Background to the Korean Constitution’s Adoption of the Due Process Clause in 1987

The Korean people’s demand for direct election of the President that began in 1983 reached its climax in the June Struggle of 1987, and the then majority party was obliged to surrender to the people’s demand by announcing the June 29 Declaration read by Tae-woo Roh, by then the presidential candidate of the majority party. Since that time, the representatives of the majority and the minority parties had drafted and embellished the new Constitutional amend­ment by mutual consent that introduced a direct election system for the presi- dency.^[401] The new amendment was ultimately presented to the Korean Congress on the 18th of September. At that time, the minority party as well as the majority party had conflicting political interests and were both confident that they could take the helm of state affairs. The short negotiation period between the representatives of the majority and minority parties, which lasted for several months, led to hasty compromises in many important issues of constitutional revision, and, initially, the adoption of the due process clause was one such compromise. Due to pressure from many and various political forces, hasty political compromises were made between the contending parties without having any expert review by constitutional law scholars.

At that time, the majority and minority parties differed as to whether the Korean Constitution should have a constitutional provision on the probation prescribed in the Social Security Act, one of the most sensitive issues of the time. The draft from the minority party prescribed that probation could be ordered only �by the decision of the court’ while the majority party fiercely opposed the text, �by the decision of the court.’ Article 12 of the Korean Constitution, including the due process clause, resulted from a dramatic last- minute compromise during negotiations regarding constitutional revision.^[402] Owing to this compromise, the majority party was able to avoid having a constitutional provision which provided that only a court decision could order probation.

Such a rough-and-ready compromise resulted in the insertion of the term �due process’ in Art. 12 Sec. 1 and Art. 12 Sec. 3 of the Korean Constitution. Due to the various limitations that necessarily resulted from the nature of the hasty compromise, the due process clause could not help but reveal some loop­holes in the text itself. For instance, Art. 12 Sec. 1 of Korean Constitution made arrest, detention, seizure, search, and interrogation possible only by �statute’ while punishment, preventive restriction, and forced labor were possi­ble by �statute and due process of law.’ In this sense, the Korean Constitution seems to distinguish arrest, detention, seizure, search, and interrogation from punishment, preventive restriction, and forced labor. Article 12 Sec. 3 provides that �a warrant issued by a judge in due process of law’ should be presented for arrest, detention, seizure, and search, and this provided room to interpret the due process clause not as a prerequisite for arrest, detention, seizure, and search but as a narrow requirement for issuing a warrant. In order to prevent confusion in the application of due process principles, Article 12 Sec. 1 should have been drafted such that �No person shall be arrested, detained, searched, seized, interrogated, punished, preventively restricted, or forcibly labored without the statute and due process of law.’^[403]

2.

A. Theories before the adoption of the due process clause

Before the adoption of the due process clause in 1987, Art. 11. Sec.1 of the old Korean Constitution relating to freedom of the body provided that �No person shall be arrested, detained, searched, seized, interrogated, punished, preven­tively restricted, or forcibly labored without the statute.’

At that time, the majority of commentators posited that the phrase, �with­out the statute’ already implied a due process doctrine and, for this reason, that the due process clause from England and the U.S. had already been adopted in the Korean Constitution.^[404] This position was based on the fact that the phrase, �not by state law’ in the Magna Carta was very similar to the related phrase of the Korean Constitution and that the phrase in the Magna Carta was regarded as the origin of the due process clause by jurists all over the world.

However, a small number of constitutional law scholars asserted that the phrase, �without the statute’ in the old Korean Constitution, could not be regarded as a due process doctrine considering that the corollary phrase in the Magna Carta was later substituted with the phrase, �due process of law’ as well as the constitutional structures in Roman civil law countries where legalism was selected as a base of formal Rechtsstaat principle.^[405]

In my opinion, although the then majority opinion posited that due process principles stemmed from the phrase, �without the statute’, in Art. 11 Sec. 1 of the old Korean Constitution, Korean constitutional law scholars asserted concretely the contents of due process or what kinds of restrictions the due process doctrine could have imposed. The situation was the same in judicial opinions given that the courts, including the Korean Supreme Court, could not apply due process principles in real cases.

B. Theories immediately after the adoption of the due process clause Although the majority of constitutional law commentators argued that due process doctrine stemmed from the phrase �without the statute’, the fact that the due process clause was subsequently adopted and guaranteed in the Korean Constitution lends credence to the view that the due process doctrine only now has its base in the text of the Constitution while it existed merely in the interpretations of the Constitution in the past.

(1) Confirmative provision theory Now, the majority opinion of scholars before the express constitutional adoption of the due process clause has become a minority view. This minority opinion still asserts that the phrase, �without the statute’, already implied limitations related to due process princi­ples. It also asserts that the express constitutional adoption of the due process clause represents a kind of confirmative rather than a new or revolutionary principle.^[406]

(2) Bisectional theory This theory premises on the fact that Korea belongs to the Roman Civil Law tradition and, hence, the Korean Constitution is differ­ent from that of Anglo-Saxon Law countries in terms of structures of consti­tutionalist logics. For this reason, this minority position asserts that the interpretation and the specific meaning of the due process clause should be different from that of England and the U.S. even after the express constitu­tional adoption of a due process clause. In other words, the phrase, �due process of law’ from Art. 12 Sec. 1 of the Korean Constitution means that the process should be proper and prescribed by law which prescribes just processes because the Korean Constitution has a separate provision for the principle of �nulla poena nullum crimen sine lege’. In the meantime, the phrase, �due process of law’ in Art. 12 Sec. 3 of the Korean Constitution means that not only the process but also the substance should be provided by law with proper contents.^[407]

(3) Process and substance based on proper law theory This theory fully accepted due process doctrines in England and the U.S. and interpreted �due process of law’ from Art. 12 Sec. 1 and Sec. 3 to require that the contents of the laws be proper not only in process but also in substance. This position was based on the fact that the due process clause in the Korean Constitution requires propriety as well as the legality that Roman Civil Law countries require.

However, most of the scholars who supported this theory understood due process to be a narrow principle applying only to restrictions on freedom of the body in Art. 12 of the Korean Constitution, paying attention to the location of the clause. This theory also covers the position that the constitutional due process clause only applies to the criminal and probation process, generally applies to restrictions on freedom of the body, and guarantees only the right to a trial in administrative and civil procedures.^[409]

3. The Positions of the Korean Constitutional Court and Recent Scholarly Theories

A. Korean Constitutional Court's position on the due process clause

The Korean Constitutional Court has a similar position to the third theory mentioned above as evidenced by its announcement in several decisions that �The due process clause has been accepted as an independent constitutional principle in Korea and its meaning has been extended not only to the formal process but also to the substantial contents that the substance of the law should have legitimacy as well as rationality.’^[410] In other words, the court has adopted substantive due process as well as procedural due process.

As for the scope and object of application, the court held in many deci­sions that the due process clause applies not only to restrictions on freedom of the body but also to all other constitutional rights^[411] and that it applies not only to the criminal process but also to all other processes including admin­istrative^[412] and legislative processes.^[413] Further, the court announced that the due process doctrine is �one of the most important basic principles’^[414] in the Korean Constitution controlling all kinds of governmental actions.

In the following section, we will examine the Korean Constitutional Court’s decisions on due process of law and divide them into two categories; the first including cases declaring unconstitutionality due to irrationality or illegitimacy of contents of law, similar to substantive due process in the U.S., and the second including cases declaring unconstitutionality on procedural aspects, similar to procedural due process in the United States.

(1) Cases declaring unconstitutionality due to irrationality or illegitimacy of the contents of law The decisions by the Korean Constitutional Court declar­ing unconstitutionality due not to the lack of legality of process and substance but the lack of rationality or legitimacy of the contents of law are similar to substantive due process in that they emphasize the propriety - rationality and legitimacy - of law as a basis for finding a violation of due process of law.

For example, Art. 221-2 of the Korean Criminal Procedure Act, which provided that the participation of a defendant in the pre-trial witness examina­tion was to be left to a judge’s discretion, was declared unconstitutional in that it violated due process as well as the right to a fair trial because the right of attack and defense of the defendant was exceedingly restricted and the ratio­nality and legitimacy of the means to accomplish the aim of the legislation were lacking.^[415] The default judgment provision in Art. 23 of the Special Act to Expedite Lawsuit, which enabled the court to declare guilty a defendant who was absent for reasons unattributable to the defendant, was declared unconstitutional because it violated due process of law in an exceedingly improper manner.^[416] Art. 21-3 of the Government-Vested Property Act, which automatically cancelled the sale contract of government-vested property when the sales amount was not fully paid within a certain period of time, was declared unconstitutional because it violated due process without rationality and legitimacy by canceling sales contracts even where the purchaser did not pay the sales amount on justifiable grounds.^[417]

(2) Cases declaring unconstitutionality due to the violation of procedural due process Among the decisions by the Korean Constitutional Court applying and interpreting due process, there are many cases that have found a violation of due process when prior notice and evidentiary hearings for the defense were not given before probation, punishment, or forced labor was ordered. For instance, Art. 15 of the Lawyers Act provided that the Minister of Justice could order the suspension of a lawyer’s business when he became a defendant in a criminal case until a judicial decision was made in his case. The court declared it uncon­stitutional in that it violated due process by omitting the chance of an evidentiary hearing before the issuance of the order.^[418] The proviso of Art. 58-2 Sec. 1 in the Private School Act stipulated that any teacher in a private school indicted in a criminal lawsuit should be removed from office. The court declared it unconsti­tutional for violating due process because the proviso did not offer a chance for any evidentiary hearing, such as an open disciplinary committee where the teacher in question could make a statement and submit necessary evidence.^[419] Article 7 Sec. 5 of the Special Act for the Punishment of Antinational Activists provided that a defendant could simply pay a heavy penalty with no opportunity to defend himself by appearing in court. It also enabled the court to render default judgment in the event that the defendant’s absence was not his own fault. The court declared it unconstitutional because of violations of due process.^[420] Article 215 and Art. 181 of the Customs Act provided that confiscated goods should be reverted to the national treasury when the offender fled or failed to appear within four months after the confiscation. The court held that the provi­sion was violative of the Constitution’s due process guarantees because it deprived the suspect of her property with neither a formal trial nor an eviden­tiary hearing.^[421] The court declared it unconstitutional that the prosecutor called a witness into his office and kept the witness in custody. The court held that this violated due process because the prosecutor monopolized contact with the witness by preventing the other party from seeing the witness. In that situation, the defendant could not prepare for an adequate defense because the defendant had no way of knowing what testimony the witness in custody would give, and could not help exposing herself to unforeseen attack from the prosecutor.^[422]

B. Recent positions of Korean constitutional law scholars

As for the due process doctrine, the majority of Korean constitutional law scholars have supported the position of the Korean Constitutional Court since the court began issuing case law on the due process clause. Now they under­stand the due process doctrine to require that all kinds of governmental actions have procedural legality and that the substantive contents of laws themselves should have rationality and legitimacy. When it comes to the object and scope of the due process clause, the majority of Korean constitutional law scholars also regard �punished, subject to preventive restriction or to forced labor’ of Art. 12 Sec. 1 of the Korean Constitution as being not enumerated but exem­plified. Hence, they regard the due process clause as one of the most impor­tant basic principles in the Korean Constitution that applies to restrictions of all constitutional rights and to all the governmental processes that disadvan­tage Korean people in any way.^[423]

4. Lessons from the United States

However, for such an important basic principle of Constitution (due process of law), Korean academics and legal practitioners have not advanced a perfect theory with systematic and elaborate logic. Since its adoption in 1987, less than 20 years has passed, a relatively short period in the grand scheme of things. Hence, it is our urgent and crucial task that we examine the related theories and judicial precedents in the U.S. where due process has developed and connect this to our own due process clause. Of course, as the Korean Constitution is different from that of the U.S. or England, the structure of human rights protection, legal culture and tradition, the meaning and the role of the due process clause cannot be exactly the same as those in these two countries. In the realm of universality that we share in common with those two countries, the implications of due process theories and precedents from the U.S. would give us valuable lessons to develop our own theories and judicial decisions in Korea.

The due process principle is an abstract and comprehensive principle and its specific application could be and should be different according to concrete cases. Therefore, there is much room for future development through the accu­mulation of relevant judicial decisions and the development of relevant theo­ries. Particularly, I believe our due process principle has more room for development in the field of procedural due process. We do not apply the due process principle differently depending on whether the case is about judicial or non-judicial processes. Besides, we seldom employ a balancing test to decide whether to offer the opportunity for an evidentiary hearing in non-judi- cial processes while the U.S. Supreme Court does employ such a balancing test. If theories on balancing tests by the judiciary are developed in the appli­cation of due process principles in non-judicial processes, due process theories can be more elaborated upon in Korea with the accumulation of the relevant judicial decisions. For example, depending on the case, a post-deprivation hearing rather than a pre-deprivation hearing could be sufficient, and an evidentiary hearing could even be omitted if sufficient other procedural protection devices exist.

IV.