INTRODUCTION: CONSTITUTIONAL ADJUDICATION IN THE REPUBLIC OF KOREA

1. Constitution, Constitutionalism, Constitutional Adjudication and Constitutional Court in the Republic of Korea

The essence of constitutionalism lies in the fact that legislation is bound by the nation’s constitution and that the powers of the government including the executive and adjudicative powers are governed by such law.^[343] Since the estab­lishment of popular sovereignty and constitutionalism, the constitution has gradually become directly applicable in and through adjudication.

A system under the Constitution of the Republic of Korea through which a separate and independent constitutional institution reviews the constitutionality of and decides upon the validity of statutes enacted by the legislative body is grounded primarily upon the supremacy of the constitution or constitutional law, and the theories of separation of powers and limited government.

As a part of such a complex and multifaceted system that is to operate in an integrated, interrelated and coordinated fashion, the constitutional adjudica­tion is designed, ultimately, to enable various governmental functions to be implemented in compliance with the nation’s constitution.^[348] Specifically, the constitutional adjudication checks the power of the government to secure the constitutionality of the legislative function of the National Assembly, the administrative function of the executive branch, and the adjudication of the judicial branch, while confirming the allocation of the powers between the national and the local governments and also among different branches of the government, thereby functioning to maintain the order and integrity of the law and legal system of the nation.

2. Constitutional Adjudication in the Republic of Korea from the

Legislative Perspective

Here, issues pertaining to the legislative nature or function of the constitutional adjudication become pertinent, irrespective of specific forms of the constitu­tional adjudication, as long as the constitutionality of a statute is reviewed in the form of adjudication.^[350] Pursuant to the premise of representative democracy, when a statute or a provision thereof is in violation of the Constitution, the National Assembly assumes a legislative function by enacting or revising such a provision or statute. Here, under the system of constitutionality review over the statute as it is in operation in the Republic of Korea, the constitutional adjudication may be triggered to invalidate a statute or to refuse the applica­tion thereof, upon the Constitutional Court’s holding that the specific statute or its provisions are in violation of the higher law of the constitution. Such a function assumed by the Constitutional Court in the form of adjudication over the constitutionality of a statute is equivalent, on the normative plane, to the enactment, revision and repealing of a statute or part of it which are normally to be conducted by the National Assembly.^[351] Thus, adjudication by the Constitutional Court over the constitutionality of a statute may be perceived as normatively equivalent to the legislation by the National Assembly, the legis­lature.^[352]

Although the current constitutionality review under the Constitution of the Republic of Korea and the Constitutional Court Act is primarily an adjudica­tive means to guarantee the Constitution against the enactment of an uncon­stitutional statute by the national legislature, i.e., the National Assembly,^[353] the legislative function assumed by the adjudication over the constitutionality of a statute exercised by the Constitutional Court has further significant constitu­tional ramifications. In a nation governed by the principle of people’s sover­eignty, as the legislative function of the nation is assumed by the legislative body that is based upon firm democratic legitimacy, any other governmental branch or constitutional institution that exercises the normatively equivalent legislative function should also secure democratic legitimacy on a par with that of the legislature, should it stand in conformity with the principle of people’s sovereignty.

Thus, the normatively legislative function assumed by the Constitutional Court in adjudication over the constitutionality of a statute requests in turn that the Constitutional Court and its adjudication in the constitutionality review cases secure democratic legitimacy as well as constitutional legitimacy. Hence, the adjudication over the constitutionality of a statute should possess the requisite democratic as well as constitutional legitimacy, and the Constitutional Court as an institution performing such normatively legislative function should also be endowed with democratic as well as constitutional legitimacy. The core issue concerning the democratic legitimacy of the consti­tutionality review over the statute in light of the legislative function of the constitutional adjudication lies in whether the judicial officers not elected as representatives by the sovereign constituents may justifiably decide the effect of the statute enacted by the National Assembly, which is constituted by way of democratic elections and whose allegiance is deemed to be to the nation rather than to specific constituencies, in light of the principles of democracy and separation of powers.

It should be noted at this point that the legislature consisting of democrati­cally elected representatives might still enact the law that is in violation of the Constitution. In such a circumstance, such law should be controlled somehow with binding force, by the decision of an institution that is independent of the legislative body. This is the core legitimizing factor of the review over the constitutionality of the statute enacted by the legislature, by way of adjudica­tion. The democratic legitimacy of the constitutionality review over the statute through adjudication that essentially follows judicial proceedings by an inde­pendent institution is based upon the following grounds: (i) the principle of substantive democracy to guarantee the liberty and rights of the sovereign constituents, (ii) the higher norm that the majority rule does not suffice to determine in a justifiable fashion the liberty and rights of the sovereign constituents, (iii) the request from the constitutionalism that the nation’s constitutional law should be implemented with the binding force as it provides for and regulates as the supreme law the liberty and rights of the sovereign constituents, (iv) the command of popular sovereignty that the legislative power as the power of the national government should also be subjected to the constitution as the constitution is ordained and established by the constituents as the holder of the sovereignty, (v) the theory of limited power mandating that the act of the nation may be endowed with authority and legitimacy only when any and all acts of the nation are restricted within the limits of the constitution, (vi) the call from natural justice that no national institution may be permitted to check and control its own wrong, (vii) the doctrine of the separation of powers, and that (viii) the decision over the conformity to the constitution of an act of the nation should be conducted by an independent and essentially judicial institution with requisite expertise in a way that respects the prece­dents.

The following part of this chapter analyzes the legislative function of the constitutional adjudication in the Republic of Korea in light of the democratic legitimacy of law. First, it will discuss the concept of legitimacy of the legis­lation under a representative democracy, from conventional perspectives of both proceduralism and functionalism. It will then move on to indicate that two of the core factors legitimating lawmaking from either proceduralist or functionalist theory are participation on the one hand and interest representa­tion on the other. Based on such findings, this chapter will analyze democra­tic legitimacy of the legislative function of the constitutionality review over the statute assumed by the Constitutional Court in the Republic of Korea to further deliberate upon constitutional ramifications of the legislative function of the constitutionality review over the statute.

II.