Introduction of the Korean

Legal System
---Understanding Korean
Law ( 한국법의 이해 )

by Professor Lee Chul Song

Chair Professor, Konkuk University, School of Law

Assistant:

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 Week 3 (21 Mar. 2025)

Part I

Topic :
“Constitution of Korea” (1)

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 I. In general

 1. Types of law

 Constitution
 Law in narrow sense (Act, legislated by

parliament)
 Presidential decree

 Ministrial decree

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2. Procedure of enactment (or amendment)

Constitution
Proposal ->resolution in Parliament->national referendum
-> promulgation by President

Law (Act)
Proposal by parliament members or president->resolution in Parlia-
ment ->promulgation by President

Presidential decree
Proposal by President->Review of National Council->
promulgation by President

Minister’s decree
promulgation by Minister

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 3. Definition of constitution

 The fundamental and organic law of a

nation or state, establishing the
conception, character, and organization
of its government, as well as prescribing
the extent of its sovereign power and the
manner of its exercise (Black's Law
Dictionary, 7th, constitution)


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 4. Structure of the Constitution

 Main part of the Constitution is com-

posed of

human rights (Chapter I: Art. 10 –39) and

 organization of government (Chapter II:

Art. 40-118)

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5. History of the Korean Constitution

 Legitimacy of present day Korea

Independence Movement of 1. March 1919
-> Provisional Republic of Korea
->Government established on 11. April 1919
-> Democratic Reform of 19 April 1960
 The current Constitution: Amended on 29

Oct. 1987

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CONSTITUTION OF THE REPUBLIC OF KOREA
[Enforcement Date 25. Feb, 1988.]
[ No.10, 29. Oct, 1987., ]

 PREAMBLE
We, the people of Korea, proud of a resplendent
history and traditions dating from time immemorial,
upholding the cause of the Provisional Republic of
Korea Government born of the March First Indepen-
dence Movement of 1919 and the democratic ideals
of the April Nineteenth Uprising of 1960 against in-
justice, having assumed the mission of democratic
reform and peaceful unification of our homeland and
having determined to consolidate national unity with
justice, humanitarianism and brotherly love, and To
destroy all social vices and injustice, …

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… and to afford equal opportunities to every person
and provide for the fullest development of individ-
ual capabilities in all fields, including political, eco-
nomic, social and cultural life by further strength-
ening the basic free and democratic order con-
ducive to private initiative and public harmony, and
To help each person discharge those duties and re-
sponsibilities concomitant to freedoms and rights,
and To elevate the quality of life for all citizens and
contribute to lasting world peace and the common
prosperity of mankind and thereby to ensure secu-
rity, liberty and happiness for ourselves and our
posterity forever, Do hereby amend, through na-
tional referendum following a resolution by the Na-
tional Assembly, the Constitution, ordained and es-
tablished on the Twelfth Day of July anno Domini
Nineteen hundred and forty-eight, and amended
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CHAPTER I. GENERAL PROVISIONS

 Article 1
(1) The Republic of Korea shall be a democratic republic.
(2) The sovereignty of the Republic of Korea shall reside
in the people, and all state authority shall emanate from the
people.
 Article 2

(1) Nationality in the Republic of Korea shall be pre-

scribed by Act.
(2) It shall be the duty of the State to protect citizens re-
siding abroad as prescribed by Act.
 Article 3

The territory of the Republic of Korea shall consist of the

Korean peninsula and its adjacent islands.

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 Article 4
The Republic of Korea shall seek unification
and shall formulate and carry out a policy of
peaceful unification based on the basic free
and democratic order.
 Article 5
(1) The Republic of Korea shall endeavor to
maintain international peace and shall re-
nounce all aggressive wars.
(2) The Armed Forces shall be charged with
the sacred mission of national security and
the defense of the land and their political
neutrality shall be maintained.

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 Article 6
(1) Treaties duly concluded and promulgated
under the Constitution and the generally recog-
nized rules of international law shall have the
same effect as the domestic laws of the Republic
of Korea.
(2) The status of aliens shall be guaranteed as
prescribed by international law and treaties.
 Article 7

(1) All public officials shall be servants of the

entire people and shall be responsible to the
people.
(2) The status and political impartiality of pub-
lic officials shall be guaranteed as prescribed by
Act.
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 Article 8
(1) The establishment of political parties shall be free,
and the plural party system shall be guaranteed.
(2) Political parties shall be democratic in their objec-
tives, organization and activities, and shall have the neces-
sary organizational arrangements for the people to partici-
pate in the formation of the political will.
(3) Political parties shall enjoy the protection of the State
and may be provided with operational funds by the State
under the conditions as prescribed by Act.
(4) If the purposes or activities of a political party are
contrary to the fundamental democratic order, the Govern-
ment may bring an action against it in the Constitutional
Court for its dissolution, and the political party shall be dis-
solved in accordance with the decision of the Constitutional
Court.
 Article 9

The State shall strive to sustain and develop the cultural

heritage and to enhance national culture. 13
 Constitution continues.

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 Week 3 (22 Mar. 2024)

Part II

Topic :
“Constitution of Korea” (1)

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 CHAPTER II
RIGHTS AND DUTIES OF CITIZENS
 Article 10
All citizens shall be assured of human worth and
dignity and have the right to pursue happiness. It
shall be the duty of the State to confirm and guar-
antee the fundamental and inviolable human rights
of individuals.

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 Article 11
(1) All citizens shall be equal before the
law, and there shall be no discrimination in
political, economic, social or cultural life
on account of sex, religion or social status.
(2) No privileged caste shall be recog-
nized or ever established in any form.
(3) The awarding of decorations or dis-
tinctions of honor in any form shall be ef-
fective only for recipients, and no privi-
leges shall ensue therefrom.

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 Article 12
(1) All citizens shall enjoy personal lib-
erty. No person shall be arrested, de-
tained, searched, seized or interrogated
except as provided by Act. No person shall
be punished, placed under preventive re-
strictions or subject to involuntary labor
except as provided by Act and through
lawful procedures.
(2) No citizen shall be tortured or be
compelled to testify against himself in
criminal cases.
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(3) Warrants issued by a judge through due
procedures upon the request of a prosecutor
shall be presented in case of arrest, deten-
tion, seizure or search: Provided, that in a
case where a criminal suspect is an appre-
hended flagrante delicto, or where there is
danger that a person suspected of committing
a crime punishable by imprisonment of three
years or more may escape or destroy evi-
dence, investigative authorities may request
an ex post facto warrant.

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 (4) Any person who is arrested or
detained shall have the right to
prompt assistance of counsel. When a
criminal defendant is unable to secure
counsel by his own efforts, the State
shall assign counsel for the defendant
as prescribed by Act.

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(5) No person shall be arrested or de-
tained without being informed of the
reason therefor and of his right to as-
sistance of counsel. The family, etc., as
designated by Act, of a person ar-
rested or detained shall be notified
without delay of the reason for and
the time and place of the arrest or de-
tention.

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 Miranda rule

 You have the right to assistance of

counsel.
 You have the right to the silence.
 Your confession could be the basis of

guilty

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(6) Any person who is arrested or de-
tained, shall have the right to request
the court to review the legality of the
arrest or detention.

 Arrest
Miranda-Warrant- Informing the rea-
son -
Assistance of counsel- Court’s review
of the legality of arrest

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 (Principle of trial by evi-
dence)
(7) In a case where a confession is
deemed to have been made against a de-
fendant's will due to torture, violence, in-
timidation, unduly prolonged arrest, de-
ceit or etc., or in a case where a confes-
sion is the only evidence against a defen-
dant in a formal trial, such a confession
shall not be admitted as evidence of guilt,
nor shall a defendant be punished by rea-
son of such a confession.

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 End of Week 3

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