include how to materialize social and cultural rights while striking a balance
between civil and political rights and public interests like national security and
public order. This period of constitutional controversy has also witnessed remark-
able developments of civil society.
The last section of the main part evaluates the constitutional changes in this
period as a whole by way of revealing schematically sociopolitical implications and
the nexus between constitutional and legal changes and their social and political
backgrounds.
Background: characteristics of Korean constitutional history from 1948 to 1987
To understand recent developments, it is necessary to know the basic periods and
features of the Korean constitution.^1 Since the enactment of the first constitution of
1948 , nine constitutional revisions have been made. Most revisions were made to
change governmental structure, either in order to reflect de facto shifts of political
power in the wake of a coup d’e ́tat or civil revolution, or in order to strengthen
despotism by way of changing institutional bars to the re-election of the incumbent
president or to strengthen authoritarian powers. The only exception is the
Fifth Amendment of November 29 , 1962 , which was intended to provide interim
measures in the addendum of the Constitution to sanction in retrospect
those involved in illegal and corrupt activities under the Rhee administration.
Long-standing strides toward democratization produced the present constitutional
system as a direct outcome of the People’s Uprising of 1987. Five features of Korean
constitutionalism are worthy of attention.
First, a kind of presidential system has been preferred in Korea. However, it
should be borne in mind that the executive power is not granted to the president
alone, but to a collective entity of administrative agencies and committees.
The prime minister, the State Council, and state councilors are institutionalized
to facilitate and control presidential powers.
Second, the National Assembly as a single chamber of legislature is entrusted to
exercise broad discretion in the composition of governmental structure and the
restriction of constitutional rights. Unlike the Constitution of the United States
of America, where Congress can act only as prescribed by the Constitution,^2
the legislative body was vested with the general regulatory power to guarantee
national security, public order, and public welfare.
3
(^1) For a further sketch of the history of constitutionalism in modern Korea and its character-
istics, see Jongcheol Kim, “Constitutional law,” in Korea Legislation Research Institute
(ed.),Introduction to Korean Law(Heidelberg: Springer, 2013 ), pp. 31 – 8. The author draws
on this work in the sections below on ‘legal status of an independent commission’ and
‘freedom of conscience’.
(^2) The Constitution of the USA, Articlei, Section 8.
(^3) The Constitution of the ROK, Article 37 ( 2 ).