SOME ISSUES TO CONSIDER IN THE CONTINUOUS DEVELOPMENT OF DUE PROCESS PRINCIPLES IN KOREA
For the continuous development of due process principles in Korea, I believe there are some issues to consider.
First, substantive due process has been developed in the States as part and parcel of the due process doctrine.
Fundamental rights, such as the right of privacy, that are not enumerated in the U.S. Constitution derive from substanÂtive due process. In this sense, the due process clause in the U.S. Constitution has been playing an important role as â€?a comprehensive and general clause.’ I have argued elsewhere that the pursuit of happiness as set forth in Art. 10 of the Korean Constitution should be understood neither as a constitutional provision with a specific and concrete right nor as a comprehensive and general clause from which various constitutional rights can be derived. Article 10 of the Korean Constitution provides, â€?All citizens shall be assured of human dignity and worth and have the right to pursue happiness I have argued that the pursuit of happiness clause is a declaratory provision showing the idea and principle that each and every constitutional right should pursue on its interpretation and enactment.[424] The Korean Constitutional Court acknowlÂedges the pursuit of happiness as a comprehensive constitutional right and derives the general right to free behavior and the right to free expression of one’s personality from this clause. I think the due process clause should be used as a comprehensive and general clause deriving new constitutional rights rather than the pursuit of happiness clause in which the meaning of â€?happiÂness’ is so vague and which we become hesitant to acknowledge as having a specific right considering the history and use of the clause in other countries. The U.S. derived substantive due process from the due process clause and fully used it as a comprehensive and general clause from which new constituÂtional rights originated. This fact enhances the possibility of using the due process clause in the Korean Constitution as a comprehensive and general clause from which we could derive new constitutional rights.Secondly, the fact that procedural due process applies to administrative processes and controls them in a democratic way suggests many things to Korea. Although the Korean Constitutional Court extended the scope of due process to administrative processes, the court has not developed the logic on which the contents of due process applies to administrative processes. Particularly, the fact that American procedural protection devices such as prior notice and evidentiary hearing could be applied to administrative processes through procedural due process principles and the fact that the scope of the procedural protection devices could be different depending on the balancing test between private interests of the people and governmental interests really shows us that we have yet to develop the concrete content and criteria of procedural due process in this field
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- Cho Kuk. Litigation in Korea. Northampton: Edward Elgar Publishing Limited,2010. — 257 p., 2010