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The Constitution of the Republic of Korea
The First Constitution of the Republic of Korea was promulgated on July 17, 1948.
It is comprised of 10 chapters and 103 articles that guarantee sovereignty, freedom and equality for its people.
The Constitution has been amended nine times since being established in 1948, with the latest amendment coming in 1987... and it has maintained social order in Korean society ever since.
Lim Jong-hoon, Professor of Law Hongik University
The most fundamental role of a constitution in a democratic state is to guarantee the freedom and rights of its people, which are also referred to as “basic human rights.” The constitution also sets standards and regulations for various government sectors, including the legislative, executive and judicial branches.
A Constitution is a firm safeguard for citizens.
How was Korea’s Constitution enacted, and what is its role in modern society?
The First Constitution of the Republic of Korea was promulgated in July 1948, three years after the liberation of Korea.
That means Korea had never experienced the concept of a constitutional government until then. Consequently, key concepts of the constitution, such as national sovereignty, basic human rights, separation of powers, presidential system and parliamentary system were rather unfamiliar to Korean society.
Then, how was the First Constitution enacted just three years after the country’s liberation?
It is sometimes assumed that Korea’s First Constitution was prepared and enacted after liberation. However, evidence shows that Korea made constant efforts to establish constitutionalism and constitutional government throughout its history.
The Constitution, the supreme law of a country, came into force in the early modern period.
Around the end of the feudal society of the Middle Ages, absolute monarchy emerged with a new class structure, which condemned the inconsistencies of the old system and demanded social reform. Along with that movement, calls to guarantee property rights and individual freedom soon followed.
That progressive movement first emerged in England. Then in December 1689, the Parliament of Great Britain passed the English Bill of Rights to limit the powers of the monarch, which later set up the foundation of British constitutionalism.
However, the first written constitution in the world to include civil rights, a system of government and separation of powers, was created in the United States.
The country proclaimed independence from Great Britain in 1776 before establishing its first Federal Constitution in 1787 based on the current major laws of various states. That became the foundation for the US Federal Government.
Using America as a benchmark case, a large number of countries enacted written constitutions before establishing modern states. Various branches of government were then created as a safeguard against any individual or group gaining too much control, while guaranteeing the rights of the citizens. That was the beginning of modern constitutionalism.
Constitutionalism initially started in the West and then spread throughout Asia via trading ports.
As a result, Japan established and promulgated its constitution in 1889 with China following suit in 1908.
Constitutionalism was then introduced in Korea, or Joseon at the time, via trade, just like Japan and China.
However, neo-Confucianism was heavily dominant in Joseon back then, and the gap between the nobility and lower classes continued to widen. Consequently, the first task for the adaptation of constitutionalism in the country was to import and introduce the basic principles of that new governing system.
After signing the Japan-Korea Treaty of 1876, the royal inspectors of Joseon were dispatched to Japan in 1881. During the inspection, royal inspectors witnessed Japan’s new political institutions, such as its constitutional monarchy and republicanism, which they brought back to Joseon.
Then in 1883, Yoo Gil-jun was dispatched to the U.S. as a member of the Bobingsa and claimed that the wealth and power of Western countries were derived from constitutionalism, which guaranteed individual rights and freedom.
The press also played a pivotal role in introducing constitutionalism, exemplified by the Hanseong Sunbo, which covered the government system of constitutionalism as well as the civil rights it guaranteed.
Then Dongnip Sinmun or The Independent, founded in April 1896, emphasized the importance of law by calling it the foundation of democracy along with national sovereignty and civil liberties for its people.
A number of enlightened citizens soon emerged and resulted in a swell of public opinion calling for reform.
The Independence Club organized The People’s Assembly...and the Assembly of the Government and People took place in 1898 in hopes of expanding the public’s participation with an opening speech given by a former butcher Park Sung-chun.
However, constitutionalism had yet to be adapted in the country. Therefore, the enlightened force, which proposed Hongbeom Article 14 and Heonui Article 6, claimed the guaranteed basic civil rights and the legalization of state bodies.
Meanwhile, the Korean Empire strengthened dictatorial monarchy by establishing the Constitution of the Daehan Empire and prohibiting public participation in state affairs.
Lee Young-rok / Professor of Law Chosun University
The progressive movement towards constitutionalism was gaining momentum while the enlightened class was dominant in the country. However, the opposite happened after the conservative party gained the reins of government. It seems to indicate that the principles of constitutionalism were yet to be fully understood or established in the country.
A clear idea of constitutionalism finally took hold in Korea during the beginning of the 20th century. As a result, democratic republicanism started to replace the old dictatorial monarchy, and the efforts were constantly made to establish a Korean constitution.
In 1905, Korea’s first constitutional research group The Constitutional Research Council was founded to enhance public awareness on politics and promote a spirit of independence.
Yang Han-mook serialized “The Essentials of Constitutional Government” in the newspaper The Hwangseong Sinmun, stating, “A country does not belong to the monarch but rather its people. Also, it needs a government, not an imperial family.”
1907 was an important year in Korean history – Emperor Gojong was dethroned during that year. Prior to the dethronement, the enlightened force mostly agitated for constitutional monarchy. However, with such a turbulent shift in politics, democratic republicanism came to the forefront as the new political structure.
Jeon Jong-ik, Professor of Law Seoul National University
Democratic republicanism, a country without a king or queen, was spread around Joseon much earlier than what we might think. After the end of the Joseon Dynasty, intellectuals were aware of that political system due to the influence of Japanese and Chinese writings.
The ideology of democratic republicanism was initially propagated by the New People's Association. The association claimed that this political system would successfully reinstate the sovereignty of the country as opposed to forming a constitutional monarchy.
Then in 1910, Japan formally annexed Korea, and the independence movement grew even further. Along with that, the ideology of constitutionalism gradually led to the establishment of the Korean Constitution.
In 1917, Shin Gyu-sik, Park Eun-sik and Jo So-ang announced The Solitary Declaration in Shanghai to state that the Japan-Korea Treaty of 1910 did not grant complete and permanent sovereignty of Korea to Japan but to its people, establishing a solid foundation for democratic republicanism.
The March 1st Movement in 1919 marked a very important turning point both in the history of the Korean independence movement and the history of Korean constitutionalism. Proclaiming Korean national independence based on the principles of national self-determination by Woodrow Wilson, the movement consolidated the ideology of constitutionalism.
Then in April 11, 1919, independence activists gathered in Shanghai to enact a provisional constitution, comprised of 10 articles, before promulgating the Provisional Government of the Republic of Korea on the 13th.
The first article of the provisional constitution stated, “The Republic of Korea is a democratic republic.” It was the first written statement to include both “the Republic of Korea” and “democratic republic.”
Since its establishment, the Provisional Constitution was amended five times until 1944. The measures were to keep up with standards of modern constitutions with all the core clauses, such as the rights and duties of the people, the Korean provisional assembly, government organizations and accounting, and the constitution was becoming more established accordingly.
This structure later became the basis of the First Constitution of the Republic of Korea established in 1948.
On August 15, 1945, Korea was finally liberated from Japanese rule. After enduring 36 years, Koreans were about to be part of an independent nation.
Nonetheless, the journey to establishing a new independent nation was never easy with a number of political parties advocating different beliefs. With hopes of establishing a favorable government system, each party presented its own constitution to back up their ideologies.
Shin Ik-hee from the Provisional Government was the first politician to take action towards enacting Korea’s Constitution.
On December 2, 1945, 4 months after the liberation of Korea, Shin Ik-hee moved to Seoul and teamed up with some political experts to draft a new constitution and administrative organizations. Then he founded the Administration Research Institute on the 17th of the month.
Soon, the Administration Research Institute established various subcommittees, including a constitutional committee, to build a new nation. From mid-January in 1946, they held six meetings to draft the basic outline of the constitution before finally presenting the Constitution of the Republic of Korea in March 1946.
Starting with Shin Ik-hee, many other political organizations on both the left and right, established and presented constitutions. The right wing leaning group, The Representative Democratic Council in the South, presented the Provisional Constitution of the Republic of Korea,
while the left wing Korean National Democratic Front devised the Provisional Constitution of the Democratic Republic of Korea.
Then the South Korean Interim Legislature from the center resolved the Provisional Constitution of Joseon on August 6, 1947.
Lee Young-rok, Professor of Law Chosun University
Those three constitutions were practically the same. On the whole, they weren’t written for Korea’s presidential system or parliamentary system, but rather a mixed form of government. Another notable feature is that all three constitutions placed the central emphasis on strict control, the economy and equality. That was a very remarkable factor they had in common.
Meanwhile, the US brought the issue of the Korean peninsula before the United Nations in September 1947 after the failure of the Joint Commission to make progress. Then in November, the UN passed a resolution declaring that free elections be held with the creation of a UN commission for Korea. However, the Soviet Union had their forces in North Korea and boycotted the voting. Therefore, UN-supervised elections were held only in the South.
On May 10, 1948, the South held the first ever general election. And for the first time in its history, Korean citizens were given the chance to vote for members of the Constitutional National Assembly... who would soon enact the first official constitution of the Republic of Korea.
As for the United States, the country established the Constitution with the Constitutional Convention and then voted for the members of the assembly through a general election. However, Korean citizens had to set up the National assembly first due to the short time frame.
Despite the conflicts between different political parties over ideologies on governing, the first constitutional assembly election in Korea successfully took place on May 10, 1948.
948 candidates ran for the 200 assembly seats with the winners overcoming 5 to 1 odds to be elected by a voter turnout of 92.1%. This figure speaks volumes about the citizens’ longing for democracy.
On May 31, 1948, the 198 elected members opened the Constitutional Assembly.
The first task given to the Constitutional Assembly was establishing the Constitution. Therefore, the assemblyman selected 30 drafting committee members to draft the constitution with Seo Sang-il appointed as chairman. Ten expert advisers were also appointed to assist the committee members.
The Constitutional Assembly began drafting the Constitution on June 3 using Yoo Jin-oh’s Constitutional Proposal, which he created with the Administration Research Institute, the Provisional Constitution of the Republic of Korea and the Provisional Constitution of Joseon, along with many other foreign constitutions.
Among them, the Joint Constitutional Proposal by Yoo Jin-oh and the Administration Research Institute formed the basis of the constitution with the Code Compilation Committee’s Draft Constitution as a reference.
The Joint Constitutional Proposal put together the constitution drafted by Yoo Jin-oh, an expert adviser for the Constitution Drafting Committee, and that of the Administration Research Institute. It was then submitted to the National Assembly on May 31.
The draft constitution by the Administration Research Institute, so-called “Kwon Seung-ryeol edition,” was submitted on June 3 upon the founding of the Constitution Compilation Committee, a draft similar to Yoo Jin-oh’s proposal.
The draft constitution was created on June 22 and submitted to the Constitutional National Assembly after 16 arduous meetings.
Most noticeably, the system of government had changed from a parliamentary system to a presidential system, largely due to presidential candidate Rhee Syng-man.
Yet, the new system still featured elements of the previous system to limit the president’s authority. Therefore, the president had to be elected by the National Assembly and the term in office was 4 years with a single opportunity for reappointment.
Seo Sang-il, the chairman of the Constitution Compilation Committee, described the process upon submitting and presenting the draft.
Seo Sang-il, Chairman Constitution Compilation Committee
This draft constitution is based on the Provisional Constitution by the Provisional Government of the Republic of Korea, the Provisional Constitution of the Republic of Korea by the Representative Democratic Council and the Provisional Constitution of Joseon by the South Korean Interim Legislature, while referencing the current constitutions of Europe and America.
- from 17th Stenographic Record, 1st National Assembly of South Korea
The draft constitution referenced extensive data, including the Joint Constitutional Proposal by Yoo Jin-oh, the Administration Research Institute and the proposal of Kwon Seung-ryeol along with many other foreign constitutions.
That signifies that the first Constitution of the Republic of Korea was neither established within 3 years nor devised under the supervision of the United States.
With a large number of foreign literature entering through trading ports, politicians discovered and adopted constitutionalism and also studied foreign constitutions. Then they amended it to suit Korean society, ultimately to open a new chapter of Korean history.
Since Korea’s new government was to be established on August 15, the day Korea was liberated from Japanese rule, the National Assembly held a general meeting on June 23, the day after the draft constitution was submitted, in order to examine the draft.
The members of the National Assembly meticulously examined each clause of the draft constitution... with the entire process coming to conclusion on July 7.
Then on the 12th, the members summarized various views on the draft constitution and amended the wording before reciting the proposal. The referendum for the Constitution was determined by standing vote, and the Constitution was passed unanimously.
Finally, the founding creed of the Republic of Korea was promulgated to the public on July 17, 1948... and thus, the Korean government was officially launched on August 15, 1948, in accordance with the Constitution.
Shin Woo-cheol, Professor of Law Chung-Ang University
The members of the National Assembly argued fiercely over the Constitution. The most important agenda would probably the division of powers within the right wing, in other words, the form of government. Therefore, they basically argued over whether to choose the parliamentary system or the presidential system, the bicameral system or the single chamber system, as well as how to elect a president.
Despite the endless conflict between political parties, the Constitution was quickly established in Korea thanks to the determination of the Constitutional Assembly members and their hope of founding an independent nation.
Also, by referencing the constitutions of all major western countries along with the way, universal values were upheld in Korea’s first Constitution, protecting the rights of the people.
For example, it guaranteed the basic principles of democracy including the freedom of the press, association and assembly, as well as equality before the law and equal opportunities.
On the other hand, the First Constitution featured many socialistic ideas, putting a limit on individuals’ property rights and economic freedom, while emphasizing the role of the government.
Consequently, the Constitution guaranteed property rights in theory, but those relating to production or public interest still belonged to society. Also, the State regulated and coordinated economic affairs in order to maintain the balanced growth and stability of the national economy.
That included minerals and other important underground resources as well as community interest companies, which were nationalized, collectivized or owned by the government.
The First Constitution placed strong emphasis on social rights. Therefore, it guaranteed the right to receive an education corresponding to each citizen’s abilities and provided elementary education free of charge.
Also, employees in private enterprises had the right to have portions of profits as prescribed by law.
Shin Woo-cheol, Professor of Law Chung-Ang University
Socialism and socialist beliefs were dominant in the world during the early and mid 19th century. The Constitution of the German Reich in 1919 and the Russian Constitution of 1918 are prime examples. The United States was also strongly influenced by that trend, which resulted in a large number of constitutional theories based on The New Deal.
Jeon Jong-ik, Professor of Law Seoul National University
A lot of people wonder if rightwing politicians were against those socialist elements at the time. But apparently, they weren’t.
Due to the social and political trends of the time, Korea’s first Constitution was largely influenced by socialist beliefs. Yet, it still provided a stable foothold for Korea to become a democratic nation.
The First Constitution has been amended a total of 9 times since the first amendment in 1952.
Why were these amendment created? There were many reasons.
Most importantly, the world, society and life constantly change, and the constitution must adapt accordingly.
The awareness on human rights raises, and new rights emerge with the development of the world. Therefore, constitutions must constantly evolve to protect the people in accordance with all changes in society.
Amendments are created for political reasons as well. Sometimes they are made to compensate for the shortcomings of the government system, or merely for personal gain as well. For example, to prolong one’s rule.
Korea’s Constitution has also been amended to stay in tune with the times, but the majority of the amendments were created for political reasons.
Amendments for the extension of the President's term in office or for the reelection of the President have been made a total of three times in Korea – the first, second and sixth amendments.
The first amendment was created in July 1952 in Busan during the Korean War, ahead of Rhee Syng-man’s re-election.
Despite a serious conflict between major and opposition parties, Rhee forced an amendment to remove term limits on himself leading to direct presidential elections and a bicameral legislature.
This amendment retracted limits on the second term for the first President and allowed Vice President to fill vacancies in the office of the president, to prolong the rule of the Liberty Party. The second amendment took place in November 1954. This revision was initially rejected due to the shortage of the necessary numbers to pass a bill. But then the government party insisted 135 was the number needed for passing a bill according to the rule of rounding off to the nearest integer, and rescinded the rejection.
Also, the 6th amendment in October 1969 allowed the incumbent president —Park Chung-hee— to run for three consecutive terms.
Meanwhile, the Constitution has also been amended 5 times to strengthen the government structure. In this case, the constitutional system also changed accordingly.
The Rhee Syng-man government collapsed under a fraudulent election on March 15, and the third amendment took place in June 1960 under the Heo Jeong Interim Government. This amendment adopted a parliamentary system to limit Presidential authority and ultimately resolve the negative aspects of the presidential system.
The 5th revision took place in December 1962 during the second year of military dictatorship. The government was under a presidential system again, and the parliament became the unicameral legislature.
The 7th revision is called the Constitution for Revitalizing Reform. This amendment transferred the presidential election process to an electoral college, the National Conference for Unification, and expanded the president’s power dramatically by granting power to issue emergency decrees, appoint all judges in the court and dismiss the National Assembly. Also, it weakened basic civil rights to ensure the president’s long-term reign.
The 8th amendment was created in October 1980 under the Chun Doo-hwan government after the sudden assassination of President Park Chung-hee in October 1979. This revision established an electoral college and also restricted the president to a single seven-year term.
The ninth amendment was made in October 1987 as a result of civil protest against the Chun government. People collectively protested for the direct election of the President and real expansion of basic rights. The Constitution was revised and proclaimed by mutual agreement for the first time in Korean history.
Shin Woo-cheol, Professor of Law Chung-Ang University
Some of Korea’s constitutional amendments were created to consolidate power or restrict the rights of the public. However, in broader terms, they aimed to divide power to restrict certain individuals and groups from gaining too much control and authority to ensure justice. Also, these amendments expanded the rights of the public in hopes of developing true constitutionalism in the Republic of Korea.
Over the last 40 years, Korea’s Constitution has been amended once in every 5 years on average, and the current Constitution, revised in 1987, is the oldest working constitution in Korean history.
The 9th amendment was created to strengthen the rights of the public and develop democracy in the country.
As for the structure of government, the President is now elected by direct ballot for a 5-year term in office, followed by a peaceful transfer of power, which together establishes a sold basis for democracy.
Also, the authority of the National Assembly has been broadened to include inspection of state affairs to help balance and achieve harmony with state power.
The 9th amendment also brought a significant change regarding the rights of the public – basic rights have improved drastically since the First Constitution. As a now all citizens enjoy personal liberty, and no person can be arrested or interrogated unless prescribed by law, with their right to receive aid from the State.
Furthermore, the State enforced a minimum wage system, policies for enhancing the welfare of senior citizens and the young, citizens’ right to a healthy, pleasant environment, as well as the establishment of the Constitutional Court for constitutional petitions.
A constitution is the fundamental and supreme law of a country.
The Constitution of the Republic of Korea sustains Korean society, promotes universal values and protects the rights of the public.
Korea was planning for a democracy with basic human rights based on the constitutionalism of the West even before the enactment of its Constitution. Building on that foundation, the State enacted the First Constitution.
Korea’s Constitution has been revised 9 times since the First Constitution. As history reveals the political wounds from corruption, the rights of the Korean public has in essence been strengthened.
It guarantees the stability of the country, affords equal opportunities to everyone for maximum development of individual capabilities in all fields, and elevates the quality of life for all citizens. That is the purpose of Korea’s Constitution.