Act on Special Cases of School Site Procurement, prescribing that a real-estate
development company that meets specific conditions must cover the expenses for
buying a school site, is constitutional, but decided that Article 5 ( 4 ) of the Act on
Special Cases, not having provided an exception to the case where such a developer
remodels and extends an existing school building for donation, is incompatible
with the Constitution.^55
The right to work
Article 32 of the Constitution guarantees the right to work and secures the duty of
the state to provide a variety of special protection for minorities. Traditionally, this
right is considered a kind of social right that itself cannot be guaranteed for
foreigners to enjoy as a constitutional right. However, in a case concerning Guide-
lines for the Protection and Supervision of Foreign Trainees of Industrial Technol-
ogy, a departmental decree of the Ministry of Labor, the KCC ruled that the right
to work safeguards not only “a right to seek a working opportunity” in the manner of
a social right, but also “a right to seek a working environment” of a character free
from inhumane treatment in terms of working conditions, so that foreign trainees
are entitled to bring a constitutional complaint on the ground that their right to
work is encroached.^56
iv. dark sides of constitutional development in
south korea since 2000As witnessed above, Korean constitutionalism continues to make progress. Social
conflicts are mainly handled in regular decision-making processes. Periodical
elections take place without significant interruption to the extent that the peaceful
transfer of powers can be guaranteed. At the time of writing, six consecutive
presidential elections and seven general elections have occurred peacefully.
Judicial and constitutional adjudication systems work relatively well.
Despite this bright side of constitutional development in this period, there are
still a number of dark sides too. By and large, four problems merit mention.
Personalization (or private misuse) of public powers
Personalization (or private misuse) of public powers occurs when law enforcement
is used for enhancing political leaders’ personal power to the detriment of their
opponents instead of to achieve justice and peace. This phenomenon, common in
(^55) Constitutional Court Decision 2007 Hun-Ka 9 , December 22 , 2008 ,Korean Constitutional
Court Reports, Vol. 20 ,No 2 , Part 1 , 424.
(^56) Constitutional Court Decision 2004 Hun-Ma 670 , August 30 , 2007 ,Korean Constitutional
Court Reports, Vol. 19 ,No 2 , Part 1 , 297.