Travails of Judges: Courts and Constitutional Authoritarianism in South Korea

• Autores: Hak Seong Kim
• Localización: American journal of comparative law, ISSN 0002-919X, Nº. 3, 2015, págs. 601-654
• Idioma: inglés
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• Resumen

  • The judicial process in South Korea under President Park Chung Hee sets forth critical constitutional and legal-philosophical questions. Park led the promulgation of an authoritarian constitution in 1972 and ruled with broad emergency powers until his death in 1979. Under this Yusin Constitution, judges faced a positivist crisis as their capacity to protect individual rights and restrain the government was seriously impaired. Following the country's democratization in 1987, the courts came under criticism for their excessive restraint and alleged acquiescence to the Park regime. The shift toward judicial activism in recent years appears to be in line with the global trend to assert judicial power to defend fundamental rights, but it has in turn prompted fresh debate on legality and the role of judges in political transitions. The South Korean experience captures the dilemma of judges caught between the dual duties of implementing law and pursuing justice, the resolution of which, if ever possible, would require a reasoned reflection of the judicial role beyond the theme of judicial complicity with political power.