South Korean constitution. Constitutional development of the republic of korea War, armed forces
In November 1947, the 3rd session of the People's Assembly of North Korea set up a commission to draft an interim constitution, which was subjected to public discussion. A special commission of the People's Assembly of North Korea in April 1948 approved the draft Constitution with amendments and additions.
At the Second Joint Conference of Representatives of Political Parties and Public Organizations of North and South Korea, held in June 1948 in Pyongyang, the situation created as a result of the elections held in South Korea shortly before that and the creation of the Republic of Korea was discussed. It was decided to hold general elections in North and South Korea for a single Supreme People's Assembly of Korea and to form a single government from representatives of parties and public organizations of North and South Korea. It was envisaged that in North Korea these elections would be direct, equal by secret ballot, and in South Korea - indirect.
In accordance with the decisions of the Joint Conference in August 1948, general elections were organized for the Supreme People's Assembly of Korea. 572 deputies were elected to it. It was believed that 360 of them were elected from South Korea and 212 from North.
Adopted by the Supreme People's Assembly on September 8, 1948, the DPRK Constitution reflected the main features of the political system of North Korea during the period that North Korean theorists called the stage of building the foundations of socialism.
In its orientation, the 1948 Constitution was socialist and based on the Soviet Constitution, but did not mention socialism and the dictatorship of the proletariat. She legally formalized the transfer of power into the hands of representative bodies of the Soviet type. The Constitution reflected the diversity of the economy - the existence of the state, cooperative, private capitalist and small commodity sectors. But the main means of production were declared the property of the state.
The constitution declared the transfer of land into the hands of the peasantry, allowed citizens to engage in private entrepreneurial activity, limiting it to the spheres of small and medium-sized industry and trade.
The constitution declared the granting of democratic rights and freedoms to the citizens of the DPRK, proclaimed the equality of citizens of the DPRK regardless of gender, nationality, religion, profession, property status, education in all areas of state, political, economic, social and cultural life (Article 11).
The electoral system was legalized. All citizens who have reached the age of 20, regardless of gender, nationality, religion, settlement, education, social and property status, have received the right to elect and be elected to government bodies, with the exception of persons deprived of voting rights by a court verdict, pro-Japanese elements, national traitors and the insane.
Guarantees of freedom of speech, press, associations, meetings, rallies, street processions and demonstrations, freedom of religion and worship, as well as the right to create democratic political parties, trade unions, various societies and to participate in the activities of all these organizations were declared (Art. 13). The Constitution enshrines the principle of equal pay for equal work, the right to rest, social security, and the right to education (Articles 15-18).
The Basic Law defined an 8-hour working day for workers and employees, established annual paid leave, legally secured the right to social security in old age, in case of illness, disability. This right was guaranteed by the state through the provision of free medical and material assistance. Compulsory free primary education was introduced.
The 1948 constitution defined the duties of citizens. It established that the highest duty of the citizens of the DPRK is the defense of the motherland, the revolutionary gains of the Korean people (Article 28). Citizens of the DPRK are obliged to work - work in the DPRK is the basis for the development of the national economy and culture (Article 30).
The constitution regulated the system of state organs of the DPRK. The supreme body of state power was the Supreme People's Assembly, which carried out legislative, budgetary and other functions. It elected the Presidium, which during the period between sessions of the Supreme People's Assembly was the highest authority of the DPRK (Articles 32, 33, 47).
The Cabinet of Ministers was named the highest executive body of state power, which united and directed the activities of the ministries and departments that were subordinate to it.
The constitution enshrines the system of local government and government established in North Korea after its liberation. Local government bodies in provinces, cities, counties, volosts and villages were declared people's committees (Article 68). The Constitution also enshrined democratic principles for the organization and operation of the judiciary and prosecutorial oversight.
Changes and additions were made to the text of the Constitution of the DPRK of 1948 already in the first years of the existence of the DPRK. On October 30, 1954, the Eighth Session of the Supreme People's Assembly of the DPRK passed the Law on the Extension of the Term of Office of the Supreme People's Assembly from Three to Four Years. Chapter V on local governments has been amended. Instead of unified people's committees that performed the functions of organs of power and administration, people's assemblies were created as local authorities.
The ninth session of the Supreme People's Assembly (November 5, 1956) lowered the voting age from 20 to 18, thereby giving young people more opportunities to participate in political life. The first session of the Supreme People's Assembly of the third convocation (October 12, 1962) amended Article 35 of the Constitution, which determined the norms of representation in the elections of deputies to the Supreme People's Assembly: previously one deputy was elected from 50 thousand, and in accordance with the new law - from 30 thousand people. Other laws were also adopted that improved the state organization, for example, the 1952 law on changing the administrative-territorial division of the DPRK, the 1954 law on the structure of the cabinet of ministers.
The draft of the new Constitution of the DPRK was developed by a special commission. After consideration of the draft Constitution at the plenum of the Central Committee of the Workers' Party of Korea and in the United Democratic Patriotic Front, it was submitted for approval by the Supreme People's Assembly. On December 27, 1972, the Supreme People's Assembly of the DPRK unanimously adopted a new "Socialist Constitution".
The constitution consisted of 11 chapters (149 articles). The constitution proclaimed the DPRK a sovereign socialist state representing the interests of the entire Korean people (Article 1). In Art. 2 of the Constitution, the alliance of the working class and the peasantry, led by the working class, is called the basis of the people's power. The constitution defined the nature of power in the country as the dictatorship of the proletariat. Article 4 states that the DPRK in its activities is guided by the ideology of the Workers' Party of Korea. According to the Constitution, the main form of exercising state power in the DPRK is representative democracy. The 1972 constitution legally fixed the economic basis of the socialist state and society in the DPRK, determined the forms of ownership, as well as the main tasks and principles of the state's activity in the economy.
The role of labor was emphasized, the principle of distribution in accordance with the quantity and quality of labor was fixed. The basic principles of labor legislation, the 8-hour working day, and the prohibition of the employment of adolescents under the age of 16 in production were established.
A significant place is given to the characteristics of the foundations of the social policy of the Korean state. In particular, the thesis was included that the state considers the steady increase in the material and cultural standard of living of the people to be the highest principle of its activity. The main principles of the state's activities in the field of culture, the tasks of fighting against the expansion of imperialism in the field of culture and against outdated traditions were reflected.
The new Constitution formally expanded the legal guarantees for the socio-economic rights and political freedoms of North Korean citizens. The Basic Law of 1972 gave supreme legal force to such provisions as careful attitude to state and public property, the fight against theft and waste (Article 70).
The 1972 Constitution formulated the main principles of the DPRK's foreign policy. It is based on the principles of complete equality, independence, mutual benefit, mutual respect and non-interference in internal affairs, in accordance with which the DPRK establishes state, political, economic and cultural relations with all countries that are friendly to the DPRK. The Constitution emphasized that the Democratic People's Republic of Korea, on the basis of the principles of Marxism-Leninism and proletarian internationalism, strengthens its solidarity with the socialist countries and unites with the peoples of all countries that oppose imperialism (Article 16).
The Constitution of 1972 made significant changes to the system and powers of the highest and local bodies of the state. Instead of the Presidium of the Supreme People's Assembly and the Cabinet of Ministers acting in accordance with the Constitution of 1948, new state bodies were established - the Permanent Council of the Supreme People's Assembly, the President of the DPRK, the Central People's Committee and the Administrative Council, and local executive and administrative bodies of general competence became known as administrative committees.
The main links of the state mechanism of the DPRK in accordance with the Constitution of 1972 were: 1) state authorities: a) representative authorities - the Supreme People's Assembly and local people's assemblies, b) state authorities formed by representative bodies and accountable to them - the Permanent Council the Supreme People's Assembly, the President of the DPRK, the Central People's Committee, local people's committees; 2) executive and administrative bodies (public administration bodies): a) the Administrative Council and local administrative committees, b) sectoral government bodies - central (ministries and committees) and local; 3) judicial bodies - the Central Court, provincial (cities of central subordination), people's and special courts; 4) prosecution supervision bodies - the Central Prosecutor's Office, local and special prosecutor's offices.
A distinctive feature of the state mechanism of the DPRK of that period was the presence of a kind of subsystem of state authorities in the person of people's committees formed by representative bodies - people's assemblies. People's committees, according to the Constitution, are local authorities between sessions of the people's assemblies that formed them.
Unlike the previous Constitution, there was no provision for the creation of bodies of popular representation in lower administrative units - villages, workers' settlements and settlements equated to them. In 1981, the reorganization of local authorities was carried out in the DPRK. In the course of perestroika, the administrative committees of provinces, cities and counties were abolished.
The principle of democratic centralism enshrined in Art. 9 of the Constitution: "All state bodies are formed and function on the basis of the principles of democratic centralism."
At the III session of the IX convocation of the National Assembly in April: 1992, new changes were made to the Constitution of 1972, which reflected the North Korean political realities of the past two decades and legitimized the ideology and practice of Korean socialism. They were generally editorial in nature, although they also included a number of substantive content introduced to "protect and highlight the advantages" of the existing political system.
Chapter I, "Politics," actively emphasizes the leading role of the Workers' Party of Korea and. the Juche ideology developed by Kim Il Sung, on the basis of which the country is building socialism. References to Marxism-Leninism have been removed. The new proposals emphasize "strengthening the ideological revolution", "maintaining the class line", "revolutionizing all members of society and transforming them along the lines of the working class", etc. The provision that power in the country belongs to all the working people has been re-included. It is noted that the DPRK is fighting to strengthen people's power and achieve the complete victory of socialism in North Korea through the vigorous deployment of three revolutions - ideological, technical and cultural, for the unification of the motherland based on the principles of independence, peaceful unification and great national consolidation.
An important point was the inclusion in the text of the main law of the country of a provision on the possibility of creating joint ventures in the country (the law itself was adopted in 1984).
Chapter II "Culture" legislated the goal of cultural transformation - "intellectualization of the whole society", which the DPRK has been striving for in recent decades.
A new Chapter IV "Defense" was introduced, aiming at the implementation of a "military line of self-defense" and "turning the whole country into a fortress."
Chapter V, “The Fundamental Rights and Obligations of Citizens,” expanded on the right to freedom of religion, in particular, it was allowed to build places of worship and adhere to religious consciousness, with the important proviso that no one can use religion to involve external forces or violate state and public order. Citizens were charged with the duty to "constantly increase revolutionary vigilance, fight selflessly for the security of the state", in other words, resolutely defend the existing political system and its gains.
According to the changes of 1992, in Chapter VI "State Organs", the Supreme People's Assembly not only elected, but also recalled the President of the Republic, as well as the Chairman of the State Defense Committee - the second most important state body at that time. While maintaining the broad powers of the President of the DPRK, the provision was removed that he was both the Supreme Commander of all armed forces and the chairman of the State Defense Committee (this position passed to the "heir to the leader").
Held on September 5, 1998 the first session of the Supreme People's Assembly (SPC) of the DPRK of the 10th convocation (after 4.5 years), became an important event for the life of the DPRK, legally fixing the changes that occurred after the death of Kim Il Sung (1994). The session adopted important decisions - on amending the Constitution, on the reorganization of public authorities, on numerous personnel changes and new appointments. A “constitutional revolution” took place in the country, which marked the strengthening of a new, Kimjong system of government. A preamble has been introduced into the Constitution that canonizes Kim Il Sung, who remains "eternal president."
Sections on the President of the DPRK and the Central People's Committee, which was previously "the highest governing body of the state power of the DPRK" and headed by the president, were removed from the Constitution. Almost all of its powers are transferred to the Presidium of the WPC, which replaced the former Permanent Council.
The Supreme People's Assembly retained all powers as an institution exercising legislative power. He retained the right, introduced in 1992, to directly elect and recall the chairman of the State Defense Committee and members of the committee, the chairman of the Presidium of the National Assembly and his deputies, and the chairman of the cabinet of ministers. At the same time, the resolution of the issue of war and peace was withdrawn from the jurisdiction of the Supreme People's Council.
The Presidium of the National Assembly, which makes changes to the national economic plan and budget, explains the Constitution and laws, creates and abolishes ministries and departments, appoints and replaces their leaders, as well as ambassadors, ratifies and denounces international treaties, has become the highest body of state power between sessions of the WPC, announces amnesty and exercises the right of pardon.
The powers of the Chairman of the Presidium of the WPC, who “organizes and manages” the work of the Presidium, represents the state in the international arena, and accepts letters of credence and recall from ambassadors, have been expanded. In accordance with the state protocol, congratulations from the heads of foreign states on the occasion of national holidays and other events should now be sent to the chairman of the Presidium of the WPC. Previously, these functions were performed by the President of the DPRK.
The constitution retained the role of the "supreme military governing body" of the country for the State Defense Committee (GKO) of the DPRK. However, the powers of this body are actually much broader and go beyond the scope of the Constitution. The status of the cabinet of ministers has been raised, which has become the "supreme administrative and executive body" operating under the direct leadership of Kim Jong Il. The structure of local authorities has been simplified.
The constitution includes an introduction and 7 chapters. The introduction is devoted to the role of Kim Il Sung as the founder of the DPRK, the creator of the "Juche ideas" since the period of the "anti-Japanese revolutionary struggle". It speaks of its fundamental role in the "direction of the social revolution", the development of the "basic principles of state building". Kim Il Sung is canonized as "the sun of the nation, the beacon of unification", "a world-class politician", "a genius of ideas, theory and practice of leadership", "an all-conquering steel commander". The Constitution of the DPRK is called "Kimirsen's", legally fixing the ideas of the great leader on state building, based on the principles of Juche.
Chapter I "Politics" defines the status of the DPRK as a "sovereign socialist state", "a revolutionary state guided by the Juche ideas. Article 1 states that the DPRK represents the interests of "the entire Korean people." Thus, as in the Constitution of the Republic of Kazakhstan, the claim to jurisdiction over the entire Korean Peninsula is enshrined. Article 4 states that "Power in the DPRK belongs to the workers, peasants, labor intelligentsia, all the working people." Chapter I contains a description of the functions and principles of the formation of government bodies. Article 9 speaks of carrying out "three revolutions - ideological, technical and cultural." It also speaks of the struggle for “the reunification of the Motherland on the basis of the principles of independence, peaceful unification and great national consolidation (agreed between North and South in the Joint Declaration on July 4, 1972). Article 10 speaks of the state's reliance on "the ideological and political unity of the entire people" with the "leading role of the working class", Article 11 speaks of the leading role of the Workers' Party of Korea (WPK). Article 12 is devoted to "defending the socialist system from the subversive actions of internal and external enemies" by pursuing a "class line" and "strengthening the dictatorship of people's democracy." Article 13 speaks of the "spirit and method of Cheongsanri" (in honor of the leadership of Kim Il Sung in the village of Cheongsanri) as the main line in leadership work (includes helping the superiors to the inferiors, "counseling with the masses"; "promoting political work"), Article 14 - about the deployment of mass movements by the state (especially highlighting the "movement for the possession of the Red Banner of the three revolutions"). Article 15 speaks of the protection in the DPRK of the rights of Koreans living abroad, Article 16 - of ensuring the legal rights of foreign citizens in the DPRK. Article 17 is devoted to foreign policy principles (equality, independence, mutual respect and non-interference, mutual benefit). The DPRK "actively supports the struggle of the peoples of all countries against any form of aggression and interference in the internal affairs of other countries ... for national and class liberation."
Chapter II "Economy" begins with the definition of the economy of the DPRK as "independent", based on socialist relations of production, where the means of production belong to the state, public and cooperative organizations. State property is declared "public" and plays a leading role, and the property of public and cooperative organizations - the collective property of the working people who are members of them. Art. 23 sets as the goal "the gradual transformation of co-operative property into public property." Personal property is recognized (Article 24), which is formed "from the share of the socialist distribution according to work, as well as from additional benefits" (the provision of benefits and privileges to individuals in the DPRK is constitutionally enshrined). The new version of the Constitution (Article 24, part 3) also provides for the receipt of property and income from “farms on household plots” and “in the course of permitted economic activity” Art. 25 declares "the steady volume of the material and cultural life of the people" as the highest principle of the DPRK and the abolition of the tax system, providing "food, clothing and housing" to all workers.
The following articles list the main "Juche" economic principles, such as "modernization and scientificization of the economy", turning it into a highly developed economy based on the principles of Juche, the technological revolution and the "mass movement for technological progress", "eliminating the differences between city and countryside" , "the transfer of agriculture to an industrial basis", "the principle of combining political leadership with economic and technical", "Tean system of work", the planned nature of the economy.
An 8-hour working day is constitutionally established, the work of adolescents under 16 years of age is prohibited. It is noteworthy that the new version of the Constitution allows foreign trade not only by the state, but also by “public and cooperative organizations” (Article 36), and also encourages the creation of joint ventures, the functioning of special economic zones (Article 37).
Chapter III is devoted to culture, reflecting the realities of state intervention in the social and spiritual life of society. The "communist, popular and revolutionary" nature of culture, the need to fight "against the cultural expansion of imperialism" (Article 41) were fixed. Guaranteed 11-year universal education (Article 45) free education in universities, preschool education.
Art. 50-51 define the role of the state in the development of science and technology, and Art. 52 - in the development of "original and revolutionary literature and art, national in form and socialist in content."
The duty of the state to “protect the native language and script” (Article 54) was especially noted. Art. 55–57 fix the obligation of the state to develop physical education, a free healthcare system, and protect the environment.
Only 4 articles are included in chapter IV, devoted to the defense of the country. They enshrined the foundations of a “nationwide, nationwide defense system”, which includes “arming the entire people and turning the entire country into a fortress” (Article 60).
Chapter V declares the basic rights and obligations of citizens of the DPRK, based, as Art. 63, on the principle of collectivism: "One for all, all for one." These include: the right to elect and be elected from the age of 17 (Article 66); enjoy freedom of speech, press, assembly (Article 67); freedom of conscience (Article 68 - provided that “religion cannot be used as a means for the penetration of external forces and violation of the state, public order”); the right to work, to receive free medical care, to education, to freedom of creativity, to freedom of residence and travel (Articles 70–75). Art. 75 speaks of "special care" for veterans of the revolution, family members of military personnel, and the disabled. But Article 80 speaks of granting asylum to foreign citizens persecuted for the struggle for peace, national independence and socialism. Art. 87 obliges the citizens of the DPRK to “defend the ideological and political unity”, “show a high spirit without cherished service to society and the people”, and Art. 83 calls labor the "sacred duty" of a citizen of the DPRK. Art. 84 we oblige citizens to “treat with care and care” state and public property”, art. 85 – “increase revolutionary vigilance”, art. 86 - to defend the fatherland and carry out military service.
Chapter VI regulates the structure and procedure for the activities of state bodies. Chapter VII describes the state emblem of the DPRK (Art. 163), the flag of the DPRK (Art. 164), the anthem "Patriotic Song" (Art. 165) establishes that the capital of the DPRK is Pyongyang (Art. 166).
Questions
1. When did the first Constitution of the DPRK appear?
2. When was the second constitution of the DPRK adopted?
3. What changes were made to the Constitution in 1998?
CONSTITUTION OF THE REPUBLIC OF KOREA
(SOUTH KOREA).
PREAMBLE
We, the people of Korea,
proud of its magnificent history and traditions dating back to time immemorial,
Supporting the good causes of the Provisional Government of the Republic of Korea established as a result of the independence movement on March 1, 1919, and the democratic ideals of the uprising against injustice that took place on April 19, 1960,
assuming the mission of carrying out democratic reforms and the peaceful unification of the native state, as well as deciding to strengthen national unity through the establishment of justice, philanthropy and brotherly love,
eradicate all social vices and unjust practices,
to ensure equal opportunities for every person, and to promote the full development of individual abilities in all spheres, including political, economic, social, by strengthening a free and democratic order leading to the manifestation of individual initiative and social harmony,
and also to help each person fulfill those duties and obligations that are inextricably linked with freedoms and rights, as well as
improve the quality of life of all citizens and contribute to the preservation of peace on the planet and the general prosperity of mankind, thus ensuring security, freedom and happiness for our state and its eternal prosperity,
With this document, on the basis of a national referendum held in accordance with the resolution of the National Assembly, we amend the Constitution, which was enacted on July 12, 1948 and has subsequently been amended eight times.
CHAPTER I. MAIN PROVISIONS
Article 1
Democracy
1. The Republic of Korea is a democratic republic.
2. The supreme power of the Republic of Korea belongs to the people; all state power also comes from the people.
Article 2
Nationality
1. The nationality of the Republic of Korea is established by law.
2. According to the law, the duty of the state is to protect citizens living outside the Republic of Korea.
Article 3
Territory
The territory of the Republic of Korea includes the Korean Peninsula and its neighboring islands.
Article 4
Unification, World
The Republic of Korea strives for unification, therefore it develops and pursues a policy of peaceful unification based on the principles of freedom and democracy.
Article 5
War, armed forces
1. The Republic of Korea is doing everything possible to maintain peace on the planet and avoids participation in any wars of conquest.
2. The armed forces carry out the sacred mission of ensuring national security and protecting state lands; while maintaining their political neutrality.
Article 6
International agreements, status of foreign citizens
1. International agreements duly concluded and enforced in accordance with the Constitution and generally accepted norms of international law shall have the same effect as the internal laws of the Republic of Korea.
2. The state guarantees that foreign citizens will be granted the status established by international law and international agreements.
Article 7
Government officials
1. All public officials are servants of the people and are responsible to the people.
2. The status and political impartiality of public officials are guaranteed in accordance with the law.
Article 8
Political parties
1. The state guarantees the freedom to form political parties and the protection of a multi-party political system.
2. Political parties must be democratic in their goals, organization and activities, and have such an organizational structure that people can participate in shaping the political will of the party.
3. Political parties are under the protection of the State. The state can actively finance parties in accordance with the conditions provided for by law.
4. If the aims or activities of a political party are contrary to the fundamental democratic order, the government is empowered to take steps to dissolve that party through the Constitutional Court; in such a case, the party will be dissolved in accordance with the decision of the Constitutional Court.
Article 9
culture
The state does its best to preserve and enhance the cultural heritage and develop national culture.
CHAPTER II. RIGHTS AND DUTIES OF CITIZENS
Article 10
Self-esteem, the pursuit of happiness
All citizens have human value and dignity, and the right to achieve personal happiness. The duty of the state is to strengthen and protect the fundamental and inviolable rights of every person.
Article 11
Equality
1. All citizens are equal before the law. It is prohibited to discriminate against a person in the political, economic, social or cultural sphere in connection with his sexual, religious or social affiliation.
2. No caste can be recognized as privileged. The creation of privileged castes in any form is prohibited.
3. Badges of distinction or honor in any form are awarded exclusively to those persons for whom they are intended; they don't grant any privileges.
Article 12
Freedom of the individual, personal integrity
1. All citizens have the right to individual freedom. No person may be arrested, detained, searched, subject to confiscation of property or interrogation, except as provided by law. No person shall be punished, subject to precautionary restrictions or forced labor, except as provided by law, provided that all procedures prescribed by law are followed.
2. When investigating a criminal case in court, no citizen may be subjected to torture or forced to testify against himself.
3. In case of arrest, detention or search of a person, he must be presented with a warrant issued by a judge at the request of the accusing party in compliance with all due procedures.
However, if the person suspected of committing a crime is apprehended at the scene of the crime, or if there is a risk that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigating authorities have the right to request an arrest, detention or search warrant after an arrest, detention or search has been made.
4. Any person who has been detained or arrested has the right to the immediate assistance of a lawyer. If the accused cannot afford the services of a lawyer, the state shall appoint a lawyer for him in the manner prescribed by law.
5. No person may be arrested or detained without being informed of the reason for the arrest or detention, as well as the right to use the services of a lawyer. The family of an arrested or detained person, as well as other relatives specified by law, must be immediately notified of the reason, place and time of arrest or detention.
6. Any person arrested or detained shall have the right to take legal action to review the lawfulness of the arrest or detention.
7. If the confession of guilt was made against the will of the accused, as a result of torture, violence, threats, excessively long detention, deceit or any other similar act, or if, in a formal trial, the confession of the accused is the only evidence of his guilt, such a confession cannot be accepted as evidence of guilt and does not provide grounds for imposing punishment on the accused.
Article 13
Article 14
Article 15
Occupation
All citizens, without exception, have the right to freely choose their occupation.
Article 16
Article 17
Article 18
Article 19
Freedom of conscience
All citizens have the right to freedom of conscience.
Article 29
Religion, church
1. All citizens without exception have the right to freedom of religion.
2. No religion can be recognized as a national religion, church and state are independent of each other.
Article 21
Article 22
Article 23
Article 25
Article 26
Petition
1. All citizens, without exception, have the right to submit a written petition to any government agency in accordance with the conditions established by law.
2. The state is obliged to consider all such applications.
Article 27
Right to trial
1. All citizens have the right to be tried in accordance with the law; the court must be carried out by judges whose qualifications comply with the requirements of the Constitution and legislation.
2. Citizens who are not in active military service or members of the armed forces cannot be tried by a military court in the territory of the Republic of Korea, except for those cases of crimes that are prescribed by law and are related to important secret military information, sentries, guard posts, supply harmful food and drink, prisoners of war, military supplies and equipment, and in cases where a state of emergency has been declared.
3. All citizens without exception have the right to a speedy trial. The accused has the right to a speedy public trial, unless there are good reasons why such a trial cannot be carried out.
4. The accused is presumed innocent until a court decision is made on his guilt.
5. A person who has suffered as a result of a crime, in the process of conducting judicial proceedings in this case, has the right to make a statement in accordance with the conditions provided for by law.
Article 28
Article 29
Article 30
Article 31
Education
1. All citizens have equal rights to receive an education appropriate to their abilities.
2. All citizens raising children are responsible for at least their primary education, as well as other education prescribed by law.
3. Compulsory education is provided free of charge.
4. The independence, professionalism and political impartiality of education, as well as the autonomy of institutions of higher education, are guaranteed under the conditions prescribed by law.
5. The state promotes continuous education.
6. Fundamental issues relating to the education system, including schools and continuing education, administration, education funding and the status of teachers are determined by law.
Article 32
Work
1. All citizens without exception have the right to work. The state makes every effort to promote the employment of citizens and guarantee optimal wages through social and economic methods, and also establishes a system of minimum wages within the conditions prescribed by law.
2. Labor is the duty of all citizens without exception. The state, based on democratic principles, legislatively establishes the framework and conditions in accordance with which every citizen fulfills his duty to work.
3. The requirements for working conditions are determined by law in such a way as to guarantee the preservation of the dignity of each person.
4. Working women must be socially protected from unfair discrimination in matters of employment, pay and working conditions.
5. Working children must be socially protected.
6. Opportunity to work must be provided under the conditions prescribed by law, in the first place to those who have outstanding service to the state, wounded veterans, police officers, family members of military personnel who have lost their breadwinners, as well as police officers who have died in the line of duty.
Article 33
Associations
1. In order to improve working conditions, workers have the right to establish independent associations, conclude collective agreements and collective action.
2. Only public officials defined by law have the right to form independent associations, enter into collective agreements and collective action.
3. The right to collective action of workers in important sectors of the defense industry may be restricted or revoked under the conditions prescribed by law.
Article 34
Social Security
1. All citizens have the right to live with dignity.
2. The state is obliged to do everything possible to improve social security and social security.
3. The state is doing everything possible to improve social security and respect for women's rights.
4. The state is obliged to pursue a policy to improve the social welfare of both senior citizens and youth.
5. Citizens who are unable to earn a living on their own due to physical disability, illness, old age, etc., are under the protection of the state in accordance with the conditions prescribed by law.
6. The state does everything possible to prevent disasters and protect citizens from misfortunes.
Article 35
Article 36
Article 37
Article 38
Duty to pay taxes
All citizens, without exception, are obliged to pay taxes according to the conditions prescribed by law.
Article 39
Commitment to military service
1. All citizens have the duty to defend their nation under the conditions prescribed by law.
- No citizen deserves unfavorable treatment by reason of the performance of his duty of service in the armed forces of the state.
Article 40
Parliament
Legislative power is vested in the National Assembly.
Article 41
Elections
1. The National Assembly consists of members elected by general, equal, direct and secret vote of citizens.
2. The number of members of the National Assembly shall be established by law, but shall not be less than 200.
3. The constituencies of the National Assembly, proportional representation and other matters relating to elections to the National Assembly shall be determined by law.
Article 42
Article 43
Article 44
Article 45
Exemption from punishment
Outside the National Assembly, none of its members is responsible for an officially expressed opinion or vote cast during a meeting of the National Assembly.
Article 46
Article 47
Article 48
Speakers
The National Assembly elects a Speaker and two Vice Speakers.
Article 49
Unless otherwise provided by the Constitution or law, a decision by the National Assembly requires the attendance of the assembly by a majority of its members, as well as the simultaneous voting of a majority of the members present. In the event of an equality of votes in the voting, it is considered that the proposal has been rejected.
Article 50
Publicity
1. Sessions of the National Assembly are public. However, based on the decision of a majority of the members present, and if the speaker deems it necessary in the interests of national security, meetings may be closed to the public.
2. The need to make public sessions that have been closed to the public is determined by law.
Article 51
Article 52
Article 53
Article 54
Budget
1. The National Assembly considers and decides on the national budget bill.
2. The Chief Executive prepares a budget bill for each financial year and submits it to the National Assembly within ninety days before the start of the financial year. The National Assembly decides on this bill within thirty days before the start of the financial year.
3. If a budget bill is not passed before the beginning of the financial year, the chief executive, until the adoption of the budget bill by the National Assembly, within the budget of the previous financial year, is authorized to spend on the following items:
1) ensuring the operation of agencies and institutions established in accordance with the Constitution or legislation;
2) implementation of the necessary embezzlement provided for by law; as well as
3) continuation of projects for which budgetary funds were previously provided.
Article 55
reserve fund
1. In the event that prolonged expenditures are to be carried out over a period of time exceeding one year, the head of the executive branch must obtain the approval of the National Assembly for the specified period of time.
2. The reserve fund must be approved by the National Assembly as a whole. Spending from the reserve fund must be approved during the next session of the National Assembly.
Article 56
Article 57
Article 58
government loans
If the head of the executive branch plans to take public loans or conclude contracts that involve the imposition of financial obligations on the State that exceed the budget, then the conclusion of such contracts requires prior approval from the National Assembly.
Article 59
taxes
The types and amounts of taxes are determined by law.
Article 60
Article 61
Investigations
1. The National Assembly has the power to study public affairs or to investigate certain aspects of public affairs, and also has the right to demand the production of documents relating to them, the examination of witnesses, as well as the production of testimony or the expression of opinions.
2. Procedures and other important aspects of the study and investigation of public administration are determined by law.
Article 62
Government and Parliament
1. The Prime Minister, members of the Council of State or government delegates shall be empowered to attend meetings of the National Assembly or its committees and report on the administration of the State or to express their opinion and answer questions.
2. At the request of the National Assembly or its committees, the Prime Minister, members of the Council of State or government delegates must attend any meeting of the National Assembly and answer questions. If the Prime Minister or members of the Council of State are requested to attend a meeting, the Prime Minister or members of the Council of State are authorized to send members of the Council of State or government delegates to attend any of the meetings of the National Assembly and answer questions.
1. The National Assembly is empowered to make recommendations for the removal of the Prime Minister or a member of the Council of State from his duties.
2. The recommendations for suspension referred to in paragraph 1 may be put forward by one third or more of the members of the total number of members of the National Assembly and adopted by a simultaneous vote of a majority of the members of the National Assembly.
Article 64
Working order of the National Assembly, disciplinary measures
1. The National Assembly is authorized to establish the rules of its work and internal regulations, provided that they do not contradict the law.
2. The National Assembly has the power to review the qualifications of its members and to take disciplinary action against its members.
3. In order to expel any of the members of the National Assembly, it is necessary that two-thirds or more members of the total number of members of the assembly vote for this decision simultaneously.
4. No legal action may be initiated in court over a decision made in accordance with paragraphs 2 and 3.
Article 65
Impeachment
1. In the event that the President, Prime Minister, members of the State Council, heads of executive ministries, judges of the Constitutional Court, judges, members of the Central Electoral Committee, members of the Accounting and Audit Commission, as well as other officials appointed to office in accordance with the law who, in the course of their office, have violated the Constitution or any other laws, the National Assembly is empowered to take action to impeach them.
2. Actions for the purpose of impeachment referred to in paragraph 1 may be proposed by one third or more of the members of the total number of members of the National Assembly; to approve this decision, a majority of the members of the assembly must simultaneously take part in the vote. However, a proposal to impeach the President must be put forward by a majority of the members of the National Assembly and approved by two-thirds of the total number of members of the assembly.
3. A person against whom action of impeachment has been taken shall be suspended from exercising his powers until the final decision on impeachment has been rendered.
4. An impeachment decision entails nothing more than removal from public office. However, it does not release the impeached person from civil or criminal liability.
Section 1. President
Article 66
head of state
1. The Head of State is the President, who represents the State in relations with other states.
2. The President is responsible and fulfills the duties of maintaining the independence, territorial integrity and continuity of the State and the Constitution.
3. The President is obliged to contribute to the achievement of the peaceful unification of his state.
4. Executive power is vested in the executive branch of power headed by the President.
Article 67
Elections
1. The President is elected by universal, equal, direct, secret ballot of the people.
2. In the event that two or more persons receive the same majority of votes during the elections held in accordance with paragraph 1, then the person who receives the greater number of votes at a public meeting of the National Assembly in which a majority of the members of the National Assembly attended is elected President. .
3. If there is only one candidate for the office of President, then this person cannot be elected President until he receives at least one third of the possible number of all votes.
4. Any citizen who is eligible to be elected to the National Assembly and who, at the time of the presidential election, has reached the age of forty years or more, may be elected President.
5. All aspects related to the election of the President are determined by law.
Article 68
Article 69
Oath
During the inauguration, the President takes the following oath:
“I solemnly swear before the people that I will faithfully fulfill the duties incumbent on the President, uphold the Constitution, defend the State, strive for the peaceful unification of the motherland, promote the preservation of freedom and improve the well-being of the people, and make every effort to develop national culture.”
Article 70
Term of office of the President
The President's term of office is five years; The President cannot be re-elected.
Article 71
Vacant post of President
If the office of President is vacant, or if for any reason the President is unable to perform his duties, then his duties are transferred to the Prime Minister or members of the Council of State in order of priority, in accordance with the law.
Article 72
Article 73
Article 74
Armed forces
1. The President shall act as Commander-in-Chief of the Armed Forces in accordance with the conditions provided for by the Constitution and the law.
2. The structure and procedure for the formation of the armed forces is determined by law.
Article 75
Decrees
The President is authorized to issue presidential decrees concerning a specially defined range of matters within his powers in accordance with the law, as well as matters necessary for the implementation of laws.
Article 76
emergency powers
1. In times of internal unrest, external aggression, natural disasters, or severe financial or economic crises, the President is authorized to take the minimum necessary financial and economic action or issue decrees having the force of law, but only when urgent action is necessary to preserve national security. or public peace and order, but not enough time to wait for the National Assembly to convene.
2. In the event of a major threat to national security, the President is authorized to issue decrees having the force of law, but only when necessary to preserve the unity of the nation, and it is not possible to convene the National Assembly.
Article 86
Prime Minister
1. The Prime Minister is appointed by the President with the consent of the National Assembly.
2. The duties of the Prime Minister include assisting the President and directing the Executive Ministers.
3. No member of the armed forces may be appointed Prime Minister while he is on active duty.
Article 87
Article 88
State Council
1. The State Council considers the most important policy issues that fall within the terms of reference of the head of the executive branch.
2. The State Council consists of the President, the Prime Minister and other members, the number of which is not more than thirty and not less than fifteen.
3. The President acts as Chairman of the Council of State and the Prime Minister as Deputy Chairman.
Article 89
Article 90
Article 91
Article 92
Subsection 3. Ministries of Executive Power
Article 94
Heads of ministries
The heads of executive ministries are appointed by the President from among the members of the Council of State, on the recommendation of the Prime Minister.
Article 95
Decrees of the Prime Minister and Heads of Executive Ministries
The Prime Minister or head of each executive ministry shall have the power, by authority conferred by law, presidential decree, or ex officio, to make decisions by the prime minister or executive ministry concerning matters within his jurisdiction.
Article 96
Ministry organization
The establishment, organization and functions of each executive ministry shall be determined by law.
CHAPTER V. LEGAL PROCEEDINGS
Article 101
Litigation
1. Judicial power belongs to the courts, which consist of judges.
2. The judicial system includes the Supreme Court, which is the highest judicial body of the State, and courts at certain levels.
3. The qualifications of judges are determined in accordance with the law.
Article 102
Court Structure
1. Departments may be created in the Supreme Court.
2. The Supreme Court includes chief judges.
However, judges who are not judges of the Supreme Court may be included in the Supreme Court under the conditions prescribed by law.
3. The structure of the Supreme Court and lower level courts is determined in accordance with the law.
Article 103
Independence of judges
Judges exercise their powers independently, in accordance with their conscience and in accordance with the Constitution and legislation.
Article 104
Procedure for appointing judges
1. The Chief Justice of the Supreme Court is appointed by the President on the recommendation of the National Assembly.
2. Judges of the Supreme Court are appointed by the President on the recommendation of the Chief Justice and with the consent of the National Assembly.
3. Judges other than the Chief Justice and Judges of the Supreme Court are appointed by the Chief Justice with the consent of the Conference of Judges of the Supreme Court.
Article 105
Judges' tenure
1. The term of service as Chief Justice is six years; a judge cannot be reappointed to this post.
2. The term of office of a judge of the Supreme Court shall be six years; according to the law, judges cannot be reappointed to this post.<
3. The term of office of a judge other than the Chief Justice and Judges of the Supreme Court shall be ten years; according to the law, judges cannot be reappointed to this post.
4. The retirement age of judges is determined in accordance with the law.
Article 106
Sanctions, early retirement
1. No judge may be removed from office except in cases of impeachment, imprisonment or a heavier penalty; he also cannot be suspended from office; the salary of a judge cannot be reduced; a judge may not be subject to unfavorable treatment, except for disciplinary action.
2. If a judge is unable to perform his duties due to a serious deterioration in mental or physical health, he may be dismissed under the conditions prescribed by law.
Article 107
constitutional revision
1. When the constitutionality of a law is challenged in a court, the court requires a decision of the Constitutional Court and makes its decision on its basis.
2. The Supreme Court is empowered to make a final review of the constitutionality or legality of administrative decrees, regulations and actions in the event that their constitutionality and legality are challenged in court.
3. An appeal against a decision of an administrative body to a court may be carried out as a procedure preceding the trial. The procedure for appealing a decision of an administrative body to a court is established by law and complies with the principles of legal proceedings.
Article 108
court administration
The Supreme Court, within the framework of the law, is empowered to create regulations regarding trials and internal discipline, as well as regulations for resolving administrative matters of the court.
Article 109
Publicity
Litigation and court decisions are open to the public.
However, where there is a risk that a trial will undermine national security, disturb public peace and order, or damage public morals, such trials may be closed to the public in accordance with the decision of the court.
Article 110
Military courts
1. Military courts may be established as special courts for the administration of justice in military matters.
2. The Supreme Court has final appellate jurisdiction over military courts.
3. The structure and powers of the military courts, as well as the qualifications of their judges, are determined in accordance with the law.
4. Military trials carried out on the basis of emergency military law cannot be reviewed on appeal in the case of crimes committed by soldiers and members of the armed forces; military espionage; as well as crimes defined by law regarding guard posts, sentry posts, supply of harmful food and drink, prisoners of war, with the exception of death sentences.
CHAPTER IX. ECONOMY
Article 119
Orders and management of the economy
1. The economic structure of the Republic of Korea is based on respect for the freedom and creative initiative of commercial organizations and individuals in the field of economic relations.
2. The state regulates and coordinates economic activities in order to maintain balanced growth and stability of the national economy, ensure a fair distribution of income, prevent market dominance and misuse of economic influence, and democratize the economy by establishing harmony among economic actors.
Article 120
Natural resources
1. Permits for the use, development and consumption of minerals and other important minerals, marine resources, water energy, as well as the forces of nature available for economic use, may be granted for a certain period of time, within the conditions specified by law.
2. Land and natural resources are under the protection of the State; The state determines a plan for their balanced development and use.
Article 121
Agriculture
1. With regard to agricultural land, the state shall strive to implement the principle “land to the peasants”. Agricultural leases are prohibited.
The first Constitution of the Republic of South Korea was adopted on July 17, 1948. According to this Constitution, centralized power was proclaimed in South Korea with a president at the head. However, a series of amendments significantly changed not only the content of the basic law of the state, but also made serious changes in the configuration of the political system of South Korean society .
The first amendments were made in 1952 before Syngman Rhee's re-election as president. They strengthened the position of the president and passed only after a heated debate. In 1954, on the initiative of Syngman Rhee, amendments were adopted that removed restrictions on the presidential term and emphasized the capitalist model of the economy.
In 1960, during the Second Republic, more democratic amendments were made to the Constitution, notably a bicameral parliament and the creation of an electoral commission.
After the 1961 putsch, when Park Chung-hee came to power, the 1960 version was annulled, and in 1962 the Constitution of the Third Republic, created in the likeness of the US Constitution, was adopted. 1972 - the year of the adoption of the Constitution of the Fourth Republic, called the Yusin Constitution, further strengthening presidential power.
After the assassination of Park Chung-hee in 1979, the Fifth Republic of South Korea began under the leadership of the new President Chung Doo-hwan. In 1980, the Constitution was revised once again, the presidential power was slightly weakened, and a unicameral parliament was formed.
After pro-democracy protests in 1987, the Constitution of the Sixth Republic was adopted, which is still in force today.
The Constitution consists of a Preamble, 130 Articles and six Addenda. It is divided into 10 chapters: General Provisions, Rights and Duties of Citizens, National Assembly, Executive Power, Courts, Constitutional Court, Electoral System, Local Self-Government, Economy, and Constitutional Amendments.
The main provisions of the Constitution of the Republic of Korea include the sovereignty of the people, the separation of powers, the pursuit of peaceful and democratic unification of South and North Korea, the establishment of world peace and international cooperation, the rule of law, and the responsibility of the state to achieve the welfare of the people. The constitution proclaims a liberal democratic political system in the country. The Basic Law not only declares in its Preamble that the Republic of Korea seeks to "further strengthen the foundations of a free and democratic system", but also legislates the separation of state powers and the rule of law. The constitution approves a presidential system of government, supplemented by elements of parliamentarism. It grants political parties constitutional privileges and protections, while imposing on them constitutional obligations to ensure a free and democratic political order.
The Constitution sets out the fundamental rights and obligations of citizens.
The achievement of the current Constitution is the establishment of the Constitutional Court as the defender of the Constitution and the guarantor of the fundamental rights of citizens.
Amending the Constitution requires special procedures that are different from other legislative actions. Proposals to amend the Constitution can be made either by the President of the country or by a majority of the deputies of the National Assembly. The amendment is adopted and enters into force if it is approved not only by two-thirds or more of the votes of the deputies of the National Assembly, but also if more than half of the citizens who took part in the national referendum voted for it, provided that in this vote participation of more than half of all voters
HISTORY
I. A. Tolstokulakov,
Senior Lecturer, Department of History, Economics and Culture of Korea, FENU
DEVELOPMENT OF THE DEMOCRATIC PROCESS AND THE CONSTITUTIONAL ISSUE IN SOUTH KOREA
In the past few decades, the efforts of researchers in many countries of the world have been directed to studying the rapid socio-economic and political development of the Republic of Korea, which in a short historical period has turned from a poor one, devastated by a long period of colonial rule and a devastating war of 1950-1953. an agrarian country into an advanced industrial state, which has taken one of the leading places on the world stage. And yet, to replace the successful rise of the South Korean economy in the late 90s. came an unprecedented financial and economic crisis! It is becoming more and more obvious that the socio-political system of the country lags far behind the high rates of economic growth.
Domestic scholars of Korean studies have done a lot in the past decade to comprehend the experience of political and economic development of our Far Eastern neighbor. Their work has both scientific and theoretical and clearly expressed applied significance for Russia, which is at the stage of large-scale socio-economic transformations. However, the problem of the relationship between the general level of socio-economic development and the possibility of establishing a democratic system has not been fully studied on the example of South Korean society.
Before a situation emerged in the country that made it possible to effectively reproduce models of democratic development, Korea faced the mediocrity of the first post-war leaders, a state of complete economic collapse and economic ruin in the 50s, a period of undivided domination of authoritarian orders under the military-bureaucratic system of President Park Chong-hee ( 1961-1979). In the 80s. South Korean military elite, relying on
on the ruling circles under its control, unsuccessfully tried to restore the main features of the former regime. Nevertheless, Park Chung Hee's policy of economic reformation created socio-economic and political conditions that ensured the inevitability of democratic reforms at the turn of the 1980s and 1990s. The transition to a new stage of economic and technological development, conceived and carried out during the reign of the military group led by Park Chong-hee and continued without significant economic achievements under Jeong Dooghwan (1980-1987), Ro Dae-woo (1988-1992) and Kim Yongsam ( 1993-1997), served as a catalyst for the processes of modernization and movement towards democracy.
Scholarly discussions about the relationship between the level of economic development and the degree of democracy in Korea are conducted in three main areas: the contribution of the ruling authoritarian circles to the process of accelerated industrial development; the sequence of democratic transformations within the framework of the economic course pursued by the government; economic consequences of the developing democratic process. The author of this article sees his task in highlighting such an important component of the democratic system as the development of the constitutional process in the Republic of Korea.
After the end of the Second World War, the newly formed independent states of the “Third World” are faced with the acute task of transition from a traditional society to a modern one, i.e. the problem of comprehensive modernization, "covering all spheres of public life - economic, social, political, legal and cultural"2. The vector of development of the process of political modernization in many young countries, among which, without a doubt, South Korea can be attributed, is aimed at a deep reform of the traditional political culture and the former socio-economic orders, through overcoming the authoritarian legacy to building a truly democratic system and creating the foundations civil society3. The central place in this process is given to the formation of the constitutional model of government as the main attribute of a democratic political system.
Throughout the existence of the South Korean state (and recently the 50th anniversary of its founding was celebrated), one of the most acute problems of society has been the constitutional issue. An analysis of the solution to this problem in the Republic of Korea (hereinafter - the RK) gives us the opportunity to understand and highlight the features of the development of the democratic process in many countries of the "third world" that have already made or are just undergoing a transition from authoritarianism to democracy.
During the half-century existence of the South Korean state, six different political regimes successively replaced each other, which received the name "republic" with an indication of its serial number4, nine editions were adopted
Basic law of the country 5. Such a frequent change in its content over a relatively short historical period shows that the constitutional issue in the country has always been acute and the struggle around it has not weakened.
The first constitution of the Republic of Korea was promulgated on July 17, 1948.6 It became the basis of the political regime proclaimed less than a month later, on August 15, on the day of the third anniversary of the country's liberation from the Japanese colonial yoke, the Republic of Korea and operated within the political system of the I and II Republics. The further history of the Basic Law of the Korean state can be called without exaggeration a stormy process full of numerous events. For half a century, nine versions of the constitution were in force in the country, attempts were made to revise it twelve times (successful, as noted above, were nine of them); eight presidents were in power (Kim Taejun - the eighth head of state), elected both in general presidential elections and by indirect voting; five nationwide constitutional referendums were held; the highest legislative body - the National Assembly - was subjected to the procedure of dissolution three times, including by force. Thirteen times martial law was introduced in the republic, which was in effect for a total of 1825 days (more than five and a half years). In total, 5539 various legislative acts were adopted7.
Let us cite in chronological order the following most important historical events related to the development of the constitutional issue in South Korea:
1) the first direct general parliamentary elections in the history of the Korean people on May 10, 1948 to the National Constitutional Assembly8;
2) the war on the Korean Peninsula, which resulted in the introduction of a state of emergency during the period from June 1950 to July 1953;
3) the adoption in July 1952 of amendments to the constitution, which were essentially a revision of the Basic Law: they introduced a system of direct presidential elections and a bicameral legislature in order to ensure the re-election of Lee Syngman9;
4) the falsification of the results and violence during the presidential elections on March 15, 1960 and the general April uprising that followed;
5) the introduction of the foundations of a parliamentary republic in order to ensure parliamentary control over the government under the administration of Premier Chang Mena and President Yun Boson in August 1960 - May 1961;
6) May 1961 military coup by Major-General Park Chung-hee, replacement of the constitution by the National Reconstruction Emergency Act;
7) promulgation in October 1972 of the plan of emergency measures and the adoption of the constitution of the Yusin era10;
8) the physical removal of President Park Chung-hee and the ensuing military coup led by Chung Doo-wan;
9) a wave of civil disobedience and mass resistance to authoritarian authorities in June 1987, the introduction of amendments to the constitution to ensure direct elections of the head of state;
10) the transfer of power to the civil administration of Kim Yong Sam based on the presidential elections in December 1992;
11) the election of opposition leader Kim Taejun as president and the peaceful transition of power from the ruling party to the opposition party in late 1997 and early 1998.
It is these events of the country's political history that indicate that the constitutional issue is the cornerstone and indicator of the development of democratic processes in South Korea.
In general, the constitution of any country should be perceived as a fundamental (or basic) law that reflects and regulates the coordinated interaction of its political structure and the fundamental principles of the social, economic and political system. There is no need to prove that from this point of view we perceive the constitution and the entire constitutional process as the result of the global modernization of the Third World countries.
A comparative analysis and an objective assessment of the history of the development of the constitutional process, including the constitutional culture in the Republic of Kazakhstan, allow us to distinguish three main stages in it:
Formation of the institutional foundations of a democratic system, implementation on Korean soil and implementation of the basic constitutional norms within the framework of the political system of the I and II Republics;
The struggle for a return to democratic constitutionalism and the restoration of democratic constitutional norms under the authoritarian regime of the III - V Republics;
Restoration of democratic constitutionalism within the political system of the VI Republic.
The introduction of the Constitution, the first in the history of the Korean state, on July 17, 1948, eliminated the legacy of 35 years of colonial rule and summed up the political result of the three-year management of the US Military Administration in the American occupation sector of the Korean Peninsula. This event is of extremely important historical significance, since the creation of an independent republic based on the principles of democracy and respect for sovereign civil liberties and individual rights was proclaimed. For the first time in the history of the country, the modern concept of human rights was institutionalized, based on the principles of protecting individual freedom and universal equality, the concept of parliamentary democracy, according to which the people “delegate to representatives of power structures the right to conduct public
affairs within the framework of the national mandate or social order”11. According to the Constitution of 1948, the system of government of the country implied the separation of the three branches of power in order to prevent excessive concentration of powers in one hand and to prevent abuse of power.
Despite these positive factors, we can also point out the weak and sometimes negative aspects of the first edition of the Basic Law of the Republic of Kazakhstan:
The preamble of the constitution states that the Republic of Korea is the sole legitimate state of the Korean people, thereby ignoring the real situation on the Korean peninsula; such a formulation of the problem aggravated the mutual rejection of the two Korean states;
The introduction of a mixed form of government, which combined elements of both presidential and parliamentary political regimes and became a compromise between presidential and parliamentary forms of government;
Creation of a legislative base for excessive centralization of political and economic systems, including “nationalization and socialization at the stage of economic recovery until the moment when the conditions for the transition to a market economy based on free capitalist competition are created”12;
The declarative nature of one of the most important provisions of the constitution in terms of the fact that “all the working people of the country have the right to an equal (our italics. - I.T.) share of the total income”13; which was not supported either by the realities of the country or by other legislative acts (such a norm, perhaps, cannot be found in any constitution of other states).
Certain provisions of the constitution did not correspond to the realities of the historical moment, since the conditions of ideological confrontation in the Cold War era affected its drafting. For the same reason, for many years, Soviet Korean studies argued that the creation of the Republic of Kazakhstan in the southern part of the peninsula on the basis of, as it was then customary to write, a “democratic” constitution was a fiction, since “the attributes of bourgeois democracy and democratic freedoms ... were not provided by anything”14 . For the Soviet oriental school, it was characteristic to regard the Republic of Kazakhstan as a puppet dictatorial regime, completely dependent on the United States. The 1948 constitution was assessed as pseudo-democratic, designed to protect the interests of the American monopolies and their South Korean "minions"15. Only recently has there been a shift away from such ideological attitudes16.
A distinctive feature of the 1948 Constitution is the combination of presidential and parliamentary forms of government, and this is not accidental, since it was the result of a political compromise reached in the early summer of 1948 between the main candidate for the presidency, a key political figure of the time, Lee Seung-man and his opponents from the National Constituent
assembly led by the Minjudan Democratic Party. As a result of the conflict that arose at an early stage of the constitutional process and its half-hearted solution in the constitution of 1948, the problem of the relationship between presidential and parliamentary structures, executive and legislative power runs like a red thread through the entire history of the political regime of the Republic of Kazakhstan. From the first day of its existence, the Basic Law of the Republic of Kazakhstan carries the prerequisites for its subsequent revision and introduction of constitutional amendments. At the center of the struggle of the country's political circles and parties has always been the question of the balance of power and the delimitation of powers between the parliament and the head of state; this issue in the conditions of South Korea took the form of an antagonistic contradiction between parliamentary democracy and the authoritarian institution of the presidency.
The initial stage of the development of the constitutional process turned out to be another significant problem for Korean society. It seems obvious to us to raise the question of whether the constitution was sufficiently national and based on the proper level of public consensus. It should be noted that the lion's share of the work on the preparation of its draft was carried out by employees of the legal department of the US Military Administration in Korea17, and this largely led to an extremely complex and contradictory attitude towards the first edition of the Basic Law on the part of various sections of the public. There was no procedure for public recognition of the Law: there were no parliamentary hearings, no public discussion of the draft, no open consultations with experts.
A serious test of the constitutional norms of the young South Korean state was the war on the Korean Peninsula (1950-
1953). Under the state of emergency, the constitution loses its fundamental role, the powers of the civil administration are significantly curtailed, and there is a narrowing of the civil legal framework. At the same time, it is important to emphasize the fact that the introduction of the state of emergency and related emergency legal acts fully complied with the provisions of the Basic Law of the Republic of Kazakhstan.
During the war years, power is concentrated in the hands of President Lee Syngman. Under conditions of strict censorship, the press creates for him the charisma of an outstanding fighter for national independence, a defender of the people from communist aggression. The president's personal political ambitions are also on the rise. As a result, in the early 1950s in the presence of a democratic constitution, it begins to take shape, and by the mid-1950s, the regime of authoritarian rule by Lee Syngman is finally formed. One of the president's goals is to create a new constitution for the country.
Using the procedure for amending the constitution provided for by the Basic Law, President Lee, on the eve of the presidential election, conceived and implemented the idea of the first constitutional
On July 4, 1952, an amendment imposed on the National Assembly of the Republic of Kazakhstan to change the structure of the parliament provided for its division into two chambers, and the upper House of Councilors was completed by appointing deputies by the president himself. The second amendment abolished the procedure for electing the head of state by the National Assembly, according to the new Article 53 of the constitution, the president began to be elected "by secret ballot through universal, equal and direct elections"18. From a formal legal point of view, the second edition of the constitution to a greater extent ensured the democratization of the presidential elections, but the real reasons for the constitutional reform were the fight against the growing opposition to the president in parliament and Lee Syngman's fear of a possible failure in the elections within the walls of the National Assembly. The 1952 reform also freed the head of state from direct responsibility to the supreme legislative body.
To strengthen the regime of personal power of the President in November
1954 The second revision of the constitution is carried out. The third edition of the Basic Law provides for the possibility of multiple election of one person for repeated presidential terms (previously, the president could stay in office for no more than two 4-year terms in a row). The president also received additional powers to personally supervise the activities of all ministers and the most important state institutions.
Revision of the constitution in 1952 and 1954 shows an obvious tendency to gradually endow the president with, in fact, dictatorial powers. However, one cannot completely deny the importance of a further step towards the democratization of the electoral system, which was the transition to the practice of general presidential elections. The move allowed Lee Seung-man to secure a third presidential term.
The growth of authoritarian tendencies, the formation of a cult of personality by Lee Syngman against the backdrop of a deteriorating economic situation in the late 1950s, another attempt by the authorities to deprive the Korean people of the possibility of free expression of will during the presidential elections of 1960 - all this determined the collapse of Lee Syngman's regime. The blatant falsification of the results of the elections of March 15, 1960, caused a wave of popular anger that swept over and cracked in April the authoritarian system that began to take shape towards the end of the First Republic.
Opposition forces against Lee Syngman grouped around the largest opposition party Minjudan, which, without taking an active part in the overthrow of the authoritarian regime, took advantage of the fruits of the popular uprising. The Democratic Party proclaimed that it was ready and able to change the situation in the country and the hard life of the people if it stood at the helm of political power. Its leaders promised to restore general democratic norms and freedoms, to cope with unemployment and
corruption of the state apparatus, cut its maintenance costs, significantly increase wages, streamline the tax system, etc.19 The promises made by Minjudan during a powerful propaganda campaign met the aspirations of the general population, so it is not surprising that she managed to win the parliamentary elections on July 29 1960
In mid-June, on the eve of the elections to the National Assembly, the parliament adopts a new fourth edition of the constitution, which provides for the reorganization of the highest authorities. The division of the legislature into two chambers is confirmed. The election of the president is again held within the walls of the National Assembly by a qualified (2/3) majority vote of the deputies of both chambers. The president is endowed with exclusively representative functions of the head of state, he was removed from executive power. In addition, the most important achievement of democratically minded circles of society is the reduction of the age limit for participation in elections from 21 to 20 years. This constitutional reform fundamentally changes the country's political system, as it means a transition to a parliamentary-type republic. On October 1, the creation of the Second Republic is proclaimed. “Never again in the history of the Korean state do we encounter a regime of a parliamentary republic.”20
The Second Republic was faced with the task of developing not only the economy, but also democratic principles in the life of Korean society: the genuine provision of democratic rights and freedoms, the final elimination of authoritarian forms of government, the construction of a welfare state. But the political practice of its leaders, who declared parliamentary democracy a social ideal, was often limited to demagogic arguments about the role of democracy, or even had an anti-democratic character. Suffice it to mention the Temporary Emergency Anti-Communist Law, or the law on the control of demonstrations, adopted in March 1961 at the suggestion of the Minjudan parliamentary faction. The democratic aspirations of the administrations of Prime Minister Chang Myung and President Yun Bosung have not stood the test of time. The situation in the country is gradually getting out of control of the government, political and socio-economic chaos is growing, which caused the fall of the Second Republic on May 16, 1961.
The development of the constitutional process under the conditions of a totalitarian dictatorship and the struggle for the restoration of democratic norms (1961-1987)
On the night of May 15-16, 1961, as a result of a military coup, the Military Revolutionary Committee (soon renamed the Supreme Council of State Reconstruction) came to power in the country, the ideological inspirer and leader of which was Major General Park Chong-hee. Thus began a 26-year period of a totalitarian military-bureaucratic state, the personal dictatorship of General Pak and a long
struggle for the restoration of constitutional democracy in the Republic of Korea.
The operation of the constitution was temporarily suspended, it was replaced by a series of emergency laws on state reconstruction. The military authorities promised to draw up a new constitution and by the summer of 1963 return power to the civil administration.
Park Chung Hee made his own contribution to the development of the theoretical problems of Korean democracy, he formulated and substantiated the idea of "administrative democracy", which became the ideological basis of the Republic proclaimed on December 17, 1963. This theory is based on the thesis that “the natural and highest stage in the development of modern society is the state, endowed with
unlimited power functions. The essence of Park Chung-hee's theory lies in the substantiation of the overwhelming power of state structures, the inevitable strengthening of the role of state mechanisms in the organization of society. Accordingly, the basic liberal freedoms are suppressed, the people are removed from participation in the political process, and under the conditions of a paramilitary regime, the degree of bureaucratization and militarization of the entire socio-political life of the country is growing. Not just the norm of life, but one of the main tasks of the state is becoming a universal police and bureaucratic control over all spheres of society and the individual.
Based on the new tasks of the Korean state, the Supreme Council for State Reconstruction is developing a draft constitution, which entered into force on December 17, 1963. But back in November 1962, they were submitted to a national referendum, and on December 17, 1962? d. the main provisions of the constitutional reform are approved - this was the fifth revision of the constitution. The main content of the reform is the restoration in full of the presidential form of government and the empowerment of the head of state with new powers. The 1962 constitution still proclaimed the principles of bourgeois democracy, but their implementation was not guaranteed in any way. The functions of the National Assembly, limited by the third edition of the Basic Law, this time were further curtailed by granting additional rights to the head of state. And in this case, the constitutional issue, as subsequent events showed, was finally decided in his favor.
The fifth edition of the constitution reflected the desire of Pak Chong-hee to strengthen the regime of personal power in every possible way, the president was endowed with the broadest powers: the right to form a government,
appoint and dismiss its head, conclude and ratify international agreements, declare war and conclude peace, lead the armed forces of the Republic of Kazakhstan, etc. Thus, almost all the functions of the parliament of the era of the Second Republic were transferred to Park Chonghee. The National Assembly again became unicameral22.
General Park wins the 1963 and 1967 general presidential elections. In October 1969, he, through the national
The next (sixth) revision of the constitution23, with the help of which he manages to secure the possibility of re-election for a third term, which was not allowed by the Constitution of 1962.
In October 1972, Park Chung-hee takes the next step towards consolidating his personal dictatorship. The political system of the III Republic was considered by him as a temporary stage in the course of building a totalitarian regime. The ideas of strengthening the authoritarianism of all parts of the state apparatus were embodied in the so-called "renovation reforms", the implementation of the president's plans began with the introduction of martial law on October 17, 1972.
The seventh constitutional reform ended in record time, by November 21 of the same year, when the Yusin Constitution, quasi-democratic in essence, and fixed the foundations of the military-bureaucratic regime of the IV Republic, also called Yusin, came into force, already tested through a national referendum.
The 1972 constitution provided:
Significant restriction of human rights and civil liberal freedoms;
Further transfer of many functions of legislative power to government bodies subordinate to the president - the State Council and the newly created National Congress for Self-Unification (Korea). The main task of the Congress is the election of the President (we see this as a return to the practice of indirect elections of the head of state) and the appointment of a third of the members of the National Assembly according to the list approved by the President. This institution has largely replaced parliament;
Giving the president the right to introduce a state of emergency and implement emergency measures without the consent of parliament;
Introduction into practice of mechanisms that allow Park Chung-hee to remain the head of state for life;
Establishment of "inherently anti-constitutional norms that restrict the rights and opportunities of the National Assembly
control and influence the internal political situation in the country.
As a result, the Yusin Constitution legally ensured the legal independence of the president and his regime from the parliamentary body, which became nothing more than a “democratic decoration for Park Chonghee’s authoritarianism”25.
The violation of the elementary constitutional norms that have become familiar to Korean society, the totalitarian regime built on the basis of the personal dictatorship of Park Chong-hee could not exist unchanged for a long time. The resistance of the broad masses of the people grew, the movement for the restoration of democratic constitutionalism grew stronger, the struggle for human rights and liberal freedoms expanded. The main contradiction of the Yusin regime was between its
constitutional guise and anti-democratic essence was waiting for its resolution.
On October 26, 1979, President Park Chung-hee was assassinated, and Major General Jeon Duhwan took the lead in the new leadership of the country - the National Security Emergency Committee. Having carried out a coup d'etat twice (December 12, 1979 and May 17-20, 1980), he restored order in the country with a "hard hand". The removal of Park Chung Hee was accompanied by an increase in democratic expectations in Korean society, but further events brought even greater suffering to the people, heated the political situation in the country to the limit.
In the fall of 1980, the general prepared and held a national referendum on October 22, achieving the adoption of the eighth edition of the Basic Law of the Republic of Kazakhstan. Even earlier, on August 10, Jung Duhwan left the armed forces, and on August 27, as a result of a vote of the electoral college on a non-alternative basis, he became the "civilian" president of the V Republic.
The new edition of the constitution was not much different from the previous one, its main provisions have not changed. The President, like a third of Parliament, was still elected by the National Congress by self-unification. The National Assembly did not have the constitutional right to express disagreement with the actions of the president and other executive bodies and remained a "democratic screen" for the regime. With regard to the rights and freedoms of citizens declared this time, it is enough to say that the authorities officially warned that they would arrest anyone who dares to criticize the president and the government26.
The Constitution of the 5th Republic eliminated some of the negative aspects of the Yusin regime, providing tools to prevent the president from staying in power indefinitely. It greatly facilitated the process of peaceful transformation of the military-bureaucratic system and the transfer of power to the civil administration. Although the Basic Law of 1980 contained many democratic articles regarding basic civil rights, restrictions on the functions of the administrative bodies and the introduction of an independent judiciary, its main task remained “to cover with a democratic decoration what in reality basically preserved the principles of a dictatorial regime”27.
The anti-popular nature of Chon Duhwan's dictatorship was manifested in the cruelest bloody suppression of the democratic opposition, and a staunch unwillingness to return to the practice of direct presidential elections. And this regime, which caused the broadest anti-government movement in the mid-1980s, eventually collapsed under the pressure of an irreversible process of democratization. Despite the significant achievements of the authoritarian regimes of Park Chong-hee and Chung Doo-wan in the economic sphere, their serious encroachments on the rule of law and democracy led to the collapse of the totalitarian state and the end of
the long 26-year period of regressive development of democratic and constitutional processes.
Restoration of democratic constitutionalism within the political system of the VI Republic
The return to the constitutional foundations of 1948 begins at the end of April 1986, when, under pressure from the international democratic community and a powerful opposition movement within the country, Chon Duhwan was forced to allow a discussion on a new edition of the Basic Law. On June 21, the National Assembly forms a special committee to revise the constitution of the 5th Republic, but failed to bring together the points of view of the ruling circles and the opposition on the constitutional issue. A certain split was also outlined among the leaders of the anti-government camp. This situation allowed the president to interrupt the development of the constitutional process in April of the following year, declaring that elections would be held in February 1988 on the basis of the old version of the constitution, and the discussion and adoption of a new version would be postponed to the fall of 1988, after the Seoul Olympics.
The opposition called on the people to disobey, and a wave of protests swept across the country. The culminating moment is the speech of Ro Daewoo, appointed on June 10, 1987 as Chong's official successor and candidate for the presidency of the ruling Democratic Justice Party (Jongmindan), who on June 29 published his "Declaration on Democratization"28. His proposals met all the demands of the opposition: to revise the constitution, adopt a new democratic law on elections and return to the principle of direct universal suffrage in the election of the head of state, release all political prisoners and prevent new repression against opponents of the regime, guarantee individual rights and civil liberties, to ensure true freedom of speech, to form local self-government bodies on the basis of free elections29. Chong Duhwan was forced to accept the idea of national consensus based on democratic reforms proposed by Ro Dae, since it fully met the increased demands of society for the socio-political and economic liberalization of the regime.
In order to satisfy the desire of the Korean people for democratization and ensure the peaceful and smooth nature of the democratic development of the constitutional process, in the summer and autumn of 1987, the Constitutional Commission of 8 people, representing both the government and the opposition, was actively working. The first (1948) and fourth (1960) editions of the Basic Law became the basis for the work of the Commission, the question of balance between the branches of the executive and legislative authorities again arose, this time “a successful compromise was reached, which ensured the stability of society and the political system for many years VI Republic"30. The ninth edition of the constitution passes through parliament on October 12, and is adopted on October 27, 1987
in a national referendum (93.1% of the referendum participants voted for the draft Constitution of 19873).
For the first time in the history of the country, the development of the autumn 1987 constitutional process ensured a peaceful and truly constitutional transfer of power from one president to another, which took place following the results of direct general elections on December 16, 1987. The events of that time can also be considered as a transition (or the beginning of a transition, since the new President Ro Daewoo is a former military man and the closest associate of the dictator Jeong in the army), power from the military into the hands of the civil administration. The peaceful nature of the transformation of the military-bureaucratic dictatorial regime of the 5th Republic into the democratic political system of the 6th demonstrated the maturity of Korean democracy; in fact, the anachronisms of the early 1980s were eliminated, and the regulatory framework of the Korean state was brought into line with the political realities of the time.
The idea of a national consensus based on the democratic reforms proposed by Ro Daewoo was enshrined in the preamble, 10 chapters, including 130 articles, and 6 “additional and transitional provisions” of the final XI chapter of the Constitution of the VI Republic32. It was put into effect on February 25, 1988, this date is also the moment of the official proclamation of the VI Republic.
The latest version of the Basic Law, which is currently in force, is based on the ideas of the rule of law, consolidates democratic forms of government, declares the principle of separation of powers and clearly delineates the competence of each branch of power. It introduces the foundations of a multipolar political system, provides for a multi-party system in the constitutional order and creates equal conditions for the opposition movement. The 1987 Constitution guarantees the observance of individual individual rights and a wide range of democratic freedoms. For the first time in the history of the Korean state, Art. 5 of the Constitution clearly limits the functions of the armed forces, separates them from the levers of state administration and prohibits the army from participating in political activities33. Another innovation is the introduction of a legal institution independent of the state - the Constitutional Court, the status of which is defined in Art. 111-113 Chapter VI34.
Fundamentally new relationships were created between the legislative and executive branches of government through a significant expansion of the powers of the unicameral National Assembly. He was returned to parliamentary functions, cut off during the formation of the dictatorial regimes of Pak Chong-hee and Jeondukhwan; there is reason to believe that the role of the supreme legislative body has been practically restored in the spirit of the fourth edition of the Basic Law. The presidential term was reduced from 7 to 5 years, the head of state is deprived of the right to re-election, at the same time, being the head of the executive branch according to the constitution, the president retained in his
hands significant rights and control over the government. We can talk about the preservation of the institute of strong presidential power in the political system of the VI Republic. The further development of the constitutional process in the Republic of Korea is directly related to the establishment of a balance between the principle of parliamentary democracy and the institution of the presidency.
Since 1988, all three successive presidents of the Republic of Kazakhstan have been following the course of ensuring the stability of the political system of the VI Republic, therefore, for 10 years (again, for the first time in the history of Korea), the constitution in the 1987 edition has been in force in the country, and the process of further improvement is developing. and democratization of the legal system based on it.
Assuming the presidency, Ro Daewoo vowed to do everything in his power so that "the era of peace, tranquility and stability, the great era of ordinary people, will finally come to Korean soil"35. Subsequently, his promise "was realized in the course of creating conditions for the practical participation of all Koreans in the national political process and ensuring a decent, and in the long term - a decent standard of living for the entire nation"36. Perhaps the most impressive change under Ro Daewoo is the real provision of freedom of speech and the significant activation against this background of the media, the free press. Based on constitutional norms, the president at the beginning of 1988 abolishes censorship of the press and other restrictions on the activities of the media. It should also be noted that South Korea made a breakthrough in foreign policy in the second half of the 1980s, when the country occupied a strong position in the international arena and achieved the first significant success in establishing an internal Korean dialogue at the turn of the 1980s and 1990s.
Ro Daewoo seeks to consolidate the practice of a peaceful, non-confrontational transfer of power from one president to another. To ensure constitutional continuity, on December 22, 1990, the three leading political parties of the country (the ruling Chongmindan and two opposition parties - the Democratic Reunification Party led by Kim Yongsam and the New Republican Democratic Party of Kim Jongpil) announced a merger into the Liberal Democratic Party of Korea (Hanguk Minjadan ). This event becomes an important stage in the development of constitutional democracy and the political system of the VI Republic. Former leader of the opposition camp Kim Yong-sam entered the echelons of power, becoming the official successor to Rho Dae-woo and eventually the ruling party's presidential candidate.
Having won the election campaign on December 18, 1992, he becomes the country's first truly civilian president in the last three decades (since 1961). Thus, the procedure for the transfer of power from the military to civilian circles is completed, during which Ro Daewoo played an intermediate, transitional role.
The new president continued the course towards further democratization of Korean society and the state, maintaining stability
and law and order. In the course of a serious reform of the legislation of the Republic of Kazakhstan, he managed to complete the transition to democracy on the basis of the Constitution of 1987. Kim Yongsam chose the path of deepening and further development of democratic reforms "from above", the object of his attention and the point of application of the main efforts is the whole complex of laws of the Republic of Kazakhstan, which should have been brought into full compliance with the democratic spirit of the constitution. It seeks to “consolidate the transition to development based on the values of democracy and freedom, and seeks in its activities the optimal combination of the interests of the state, society and the individual”37. The name of Kim Yong Sam is associated with the final triumph of liberalism and reaching a new level of awareness and ensuring individual freedom.
Without going beyond the framework of the Basic Law, the President implements several important sub-constitutional acts:
Amends the Law on the Activities of Political Parties (December 1993);
Improves legislation on military service, military and civilian personnel of military institutions (December 1993, December 1995 and January 1997);
completely reforms the legislation on the National Security Planning Bureau38, significantly changes the content of anti-communist legislation (January 1994 and December 1996);
Enacts the Law on the Alternative Electoral System, according to which the election of officials of the civil administration can be carried out exclusively on a competitive basis and introduces criminal liability for violation of the norms of the electoral legislation (March 1994);
The most important amendments to the Law on the National Assembly are adopted, in which, for the first time in the political practice of the Republic of Kazakhstan, a bipolar system is introduced and opposition forces receive equal rights to parliamentary activity (June 1994)39.
All changes in the civil, criminal and procedural legislation of the country are made in the spirit of expanding and strengthening democratic norms. No less attention is shown by Kim Yongsam in relation to laws in the economic and financial spheres, and here the course of further liberalization of the regulatory framework, begun under Ro Daewoo, continues.
We can say with confidence that Kim Yong Sam managed to finally destroy the institutional foundations of authoritarianism, which were preserved in some places from the previous regime.
Relying on the constitution, the president was able to legislatively ensure strong control over all state and army structures both from the parliament and from the executive branch. Under his persistent pressure, and with broad public and media support for the president's efforts, many high-ranking government and military officials were forced to resign, retire, or face prosecution.
civil servants involved in crimes against the people, repression or stained with bribery and corruption. In the three months since Kim Yong-sam's inauguration, more than a thousand top leaders of the army and state institutions have passed through the democratic "purgatory"4. Moreover, the president managed to significantly reform the armed forces and national security agencies, removing the most politicized elements from them.
Even the former dictator Jeong Duhwan and the initiator of democratic reforms Ro Daewoo suffered inevitable punishment for crimes against the nation41. In December 1995, a special law was passed making them responsible for the mass executions of demonstrations in support of democracy in April-May 1980. On its basis, both former presidents of the country were arrested and convicted, but subsequently pardoned by the head of the Republic of Korea.
Another important stage in the development of the democratic and constitutional process is the creation of a system of elected local self-government, local authorities received the right of "local autonomy", which replaced the principle of universal centralization within the IV and V Republics.
The leading principle of domestic policy under Kim Yongsam is the achievement of a public compromise and the rejection of the use of political violence against opponents. The era of absolute dominance of the executive structures ended, the authority was restored, the role of the parliament increased. The opposition received "hitherto unknown, practically equal to the ruling circles,
sti for participation in the political life of the country. It becomes an integral part of the political system of the VI Republic.
December 18, 1997 was a new peak in the development of the constitutional process in South Korea. The 15th presidential election held on that day brought victory to the leader of the opposition National Congress for New Politics, Kim Taejoong, and ensured "a peaceful transition of power from the ruling party to the opposition for the first time in the entire 50-year history of the Republic of Korea"4. Until now, the power of the president has been transferred to a pre-prepared official successor "from hand to hand" in the upper echelons of the same ruling structure; this was the case in two cases (1988 and 1992) of the three precedents for the peaceful transition of power: from Jung Dooghwan to Ro Dae and from the latter to Kim Yong Sam. The third peace procedure in 1997 bears a significant qualitative difference: “for the first time in the history of South Korea, the transfer of power “horizontally”, i.e. from one political party to another. This allowed Kim Taejun, already in his inaugural speech on February 25, 1998, to call his government "people's" and proclaim the beginning of
new era of people's government.
In the conditions of the most acute financial crisis, Kim Taejun devoted almost the entire first year of his term to finding a way out of the difficult economic situation and solving strategic problems.
given "to overcome its consequences by 2003,"46 but the public and the political circles of the country set before the new president the task of further advancement on the path of democracy. Kim Taejoong is expected to address the following political issues:
Summing up the results of democratic construction within the framework of the political system of the VI Republic and the constitutional consolidation of the democratic gains of the Korean people (according to Korean researchers, the need for a new edition of the Basic Law of the country becomes obvious);
The transition from the policy of delimitation of powers and functions of power structures, the implementation of "local" reforms in the economic, social and political spheres to the development and implementation of a new direction of national policy - "integration policy", i.e. a comprehensive understanding and integrating approach to the practical solution of all the problems facing Korean society at the moment;
Further ensuring the continuity of the political and economic course of the government47.
We must understand that the solution of these problems is directly related to the strengthening of the role of the president, who exercises his powers in accordance with the constitution. The constitutional process again returned to the traditional problem of the Korean state. A "strong" president is a past stage in the country's history, so the concentration of power in his hands can alarm the nation. In order to avoid accusations of authoritarian habits, Kim Taejun emphasizes that along with strengthening the role of the president, which is objectively necessary in the current situation, he will "in every possible way develop the "democracy of participation" of broad social strata in government." In his opinion, this will make it possible to create "transparent power at all levels and finally eradicate corruption - a terrible vice of the state system of Korea"; we are also talking about creating the foundations of a civil society, “autonomous in relation to power structures”4*.
The President seeks to improve the efficiency of the administrative apparatus, primarily in the economic field. To this end, immediately after his inauguration, he carried out the largest downsizing in the history of Korea and the restructuring of the government and the presidential administration.
At the initiative of Kim Taejun, the activity of the State Council provided for by the Constitution of 1987 as the highest deliberative body under the president is being revived. The Council is becoming an important tool for collective discussion and collegial decision-making on the most important state affairs. In accordance with the Basic Law of the Republic of Kazakhstan, the activities of the State Council are currently led by the president himself, Kim Yong-sam once entrusted this function to the prime minister.
Under Kim Taejun, a new executive body was created - the Committee for the Coordination of Economic Policy, which became an advisory body on the problems of overcoming the crisis. To accelerate anti-crisis measures in the financial and economic spheres, the current president, unlike Kim Yong-sam, actively uses the practice of presidential decrees, which is also fully consistent with the constitution, but is a new form within the framework of the development of the constitutional process.
Life has decreed that the tasks of economic reform are once again coming to the fore. Kim Taejun sees its content in building a liberal market system, he is sure that "economic growth prospects are based on democracy"49. It is on it that the efforts of the President of the Republic of Kazakhstan are concentrated at the moment.
South Korea managed to avoid falling into the abyss. Along with serious economic tasks, the authorities are solving the problem of creating conditions for further adaptation of the political system of the VI Republic to the new socio-economic and political realities of the country. One can not only conclude that the existence of the institute of strong presidential power made it possible to finally destroy the authoritarian system and ensure the progress of the Republic of Korea along the path of democratic reforms, but also to assume that the exclusive role of a strong and democratic leadership of the country in the person of the head of state will be preserved in the future. democratic consolidation based on the principles of "democratic participation" and will determine the development of the constitutional process in South Korea in the near foreseeable future.
NOTES
1 For details on the essence of the financial and economic crisis in South Korea, see: Sinitsyn B.V. Financial crisis in the Republic of Korea and its consequences // Korea: Sat. Art. To the 80th anniversary of the birth of Professor M.N. Pack. M.: International Center for Korean Studies, Moscow State University - Publishing House "Ant", 1998. S. 405-410.
3 See: Tolstokulakov I.A. civil society in the country. On the question of its formation // Russia and the Asia-Pacific Region. 1998. No. 3. S. 93-102; he is. Confucian Traditions and the Formation of Civil Society // Fifth Far Eastern Conference of Young Historians / Institute of History, Archeology and Ethnography of the Peoples of the Far East, Far Eastern Branch of the Russian Academy of Sciences. Vladivostok, 1998, pp. 106-112.
four! Republic (1948-1960), II Republic (1960-1961), III Republic (1963-1972), IV Republic (1972-1979), V Republic (1980-1987) and now the existing regime of the VI Republic (since 1988).
"They often mistakenly talk about the "nine constitutions" of the Republic of Korea, but we emphasize that the current constitution and its predecessors are nothing more than various modifications of the constitution adopted on July 17, 1948. The revision of the Basic Law of the Republic of Korea was carried out in 1952, 1954 , 1960, 1962, 1969, 1972, 1980. The Constitution of the VI Republic was approved on October 29, 1987.
* In the main capital work on the history of Korea [History of Korea (from ancient times to the present day): In 2 vols. Vol. 2. M .: Nauka, 1974. S. 196.] an error was made, since the date 07/12/1948 is indicated there G.
7 Data are as of 3G.G4.199B.
The constitutional development of the Republic of Korea begins its countdown on July 12, 1948, when the Constitutional Assembly adopted the country's first constitution. This Basic Law was developed after the liberation of the Korean Peninsula from Japanese occupation. The American military administration acted on the territory of its southern part, which, of course, had a strong influence on the draft Constitution. This, apparently, determines the evaluation of the Constitution of 1948 as "pro-Western in its style and alien to the majority of the Korean people"<1>. This Constitution established a presidential form of government and was called the Constitution of the First Republic. In 1958 and 1954 amendments were made to it concerning the election of the president and the terms of his office. The third amendment was made in 1960 after the fall of the Syngman Rhee government. This amendment introduced a bicameral legislature and replaced the presidential system with a parliamentary one. In the same year, 1960, an amendment was adopted that affected the abolition of the principle of the absence of retroactive effect of the law for persons who violated the law in the last elections. The Basic Law edited in this way became known in Korean sources as the Constitution of the Second Republic.
<1>For a general description of the legal system of the Republic of Korea, see: Legal systems of the countries of the world: a Handbook. M.: NORMA, 2001. S. 344 - 345.
In 1961, as a result of a military coup, the Council of National Reconstruction, headed by General Pak Chung-hee, came to power. And in 1962, an amendment was adopted that restored the presidential form of government, and in 1969, another one that removed the two-term limit on the presidency, which allowed Park Chung-hee to become president for the third time. This document was called the Constitution of the Third Republic.
The death of President Park Chung-hee led to the collapse of the Yusin system, and in 1980 the government of the Republic of Korea created a specialized committee to review the Constitution. The draft prepared by this committee was adopted by an overwhelming majority in a referendum. This Constitution became the foundation of the Fifth Republic and served as the model for the current Constitution of 1988, called the Constitution of the Sixth Republic.
The constitution consists of a preamble, 130 articles, 6 transitional provisions. It is divided into 10 chapters: General provisions, rights and obligations of citizens, the National Assembly, executive bodies, the judiciary, the Constitutional Court, election commissions, local self-government, the economy, constitutional amendments.
In Art. 1 of the Constitution, the state system of the Republic of Korea is defined as democratic, and its people are declared the bearers of sovereignty<2>.
Article 3 establishes that the territory of the Republic of Korea consists of the Korean Peninsula and the nearest islands<3>.
<3>North Korea has a different opinion. Article 1 of the Socialist Constitution of the DPRK states that "The Democratic People's Republic of Korea is a sovereign socialist state representing the interests of the entire Korean people." (Quoted from: The Constitution of the Socialist States. T. 1. M .: Legal Literature, 1987. P. 313.)
The state of division forced the legislator to include in the Constitution (Article 4) provisions on the desire of the Republic of Korea for a peaceful unification based on the principles of freedom and democracy<4>.
<4>The socialist constitution of the DPRK in Art. Article 5 formulates analogous propositions in a slightly different way: the DPRK is fighting for the complete victory of socialism in the northern part of the country, for rejecting external forces, to achieve the peaceful unification of the Motherland on democratic principles and complete national independence on a countrywide scale. (Quoted from: The Constitution of the Socialist States. T. 1. M .: Legal Literature, 1987. P. 313.)
In Art. 5 peace-loving principles of foreign policy are proclaimed.
Article 8 guarantees a multi-party system.
The central link in the system of state bodies of the Republic of Korea is the President of the Republic, who is the head of state and the guarantor of the integrity of the country and heads the executive branch. He is elected by direct universal suffrage for a term of five years and cannot be re-elected. The powers of the president are significant.
It is endowed by the Constitution with legislative powers, among which are:
a) the right of legislative initiative;
b) the right of suspensive veto;
c) the right to issue decrees "concerning issues referred by the legislation to its jurisdiction in a specially defined area" in accordance with Art. 75. These decrees are executed in writing and countersigned by the Prime Minister or the Minister concerned.
Such a provision gives a certain originality to the legal position of the president, since it actually determines his political irresponsibility, placing it on the person who countersigned the decree. However, this does not mean weakening the powers of the head of state, since he forms and heads the government.
The President, in accordance with the Constitution and the law, appoints officials (Article 78 of the Constitution). First of all, this is the prime minister, but for his appointment, the president must obtain the consent of parliament. On the advice of the Prime Minister, the President appoints the members of the Council of State, without the consent of Parliament. The head of state also appoints the head of the Audit and Inspection Department and its members. With the consent of the National Assembly, the President appoints the President of the Supreme Court and its members, as well as the President and members of the Constitutional Court.
A feature of the South Korean Constitution is the detailed regulation of the president's powers to ensure national security in emergency situations. In the event of unrest, an external threat, a natural disaster, and during a "difficult financial situation or economic crisis" (paragraph 1 of article 76), he can take the minimum necessary financial or economic measures, as well as issue decrees that have the force of law in that case , "if it is necessary to take urgent measures to ensure national security or public peace" and if it is not possible to convene parliament. However, it should be noted that, unlike the Yusin Constitution, the president must now notify the National Assembly and obtain its approval, and if this is not received, then these actions and decrees become invalid.
The President can also impose martial law and declare the mobilization of the Armed Forces. Moreover, martial law can be of two types:
- state of emergency;
- precautionary martial law.
When a state of emergency is declared, freedom of speech, the press, association and assembly may be restricted, and the powers of the government and courts may be revised. In the modern history of Korea, a state of emergency was introduced in October 1972 and at the end of 1979. Moreover, in the conditions of a state of emergency, two versions of the Basic Law of the country came into effect.
The President of the Republic of Korea, as the head of state, is endowed with foreign policy powers: he represents the country in relations with foreign states (Article 66), concludes and ratifies, with the consent of the Parliament (Article 60, paragraph 1), international treaties, and also declares war and makes peace (Article 73). These provisions are characteristic of the legal status of the presidents of most presidential republics.
The President may submit to a national referendum questions relating to diplomacy, national defense, unification, and others (Article 72).
The President is the Supreme Commander of the Armed Forces.
The President exercises his executive functions through the State Council (government), consisting of 15 to 30 members, and is its head. The composition of the State Council includes:
- president (chairman);
- prime minister (deputy chairman);
- Deputy Prime Minister;
- 19 ministers heading the respective line ministries;
- two government ministers.
The State Council considers and discusses the main directions of policy and issues appropriate recommendations to the President (Article 89) on the following issues:
- development of the main directions of state policy and activities of the executive branch;
- declaration of war, conclusion of peace treaties and other important aspects of foreign policy;
- preparation of draft amendments to the Constitution, proposals for holding nationwide referenda, consideration of treaties, bills and presidential decrees;
- budget proposals, basic plans for the disposal of state property, the conclusion of contracts associated with large financial obligations on the part of the state, and other important financial issues;
- emergency presidential decrees, emergency measures or decrees of a financial and economic nature, declaration or lifting of martial law;
- issues of military construction;
- demands for emergency sessions of the National Assembly;
- evaluation and analysis of the results of state affairs management;
- determining the most important areas of activity for each ministry and coordinating their work;
- actions aimed at the dissolution of any political party;
- consideration of applications relating to the activities of executive bodies;
- appointment of the Attorney General, rectors of state universities, ambassadors, commanders of all branches of the armed forces and other officials and heads of large industrial enterprises in accordance with the law;
- consideration of other issues submitted for discussion by the President, Prime Minister or any of the members of the State Council.
The Prime Minister participates in the main decisions in the field of public policy. He also has the right to act on behalf of the president on matters that may be delegated to him by the head of state, as well as to issue orders on his own behalf. The Prime Minister has the right to make recommendations to the President regarding the appointment or dismissal of members of the Council of State. Members of the Council of State bear collective and individual responsibility only to the President for their work.
According to the Constitution, the State Council is an advisory body, since the final decision is made by the head of state, which is typical for presidential republics.
The National Assembly is a unicameral supreme legislative body, consisting of 299 members elected for four years, 2/3 of which are elected in general elections, and the remaining seats are distributed proportionally between parties that have received five or more seats in direct elections (Law "On Elections in National Assembly" 1987). The deputies are representatives of the entire people (Jungkook Eui-won) and have a representative mandate.
The National Assembly includes 17 standing committees, the most important of which are the committees on legislation and justice; on foreign policy; for internal affairs; finance; on economic issues; on issues of national defense and security, which is responsible for issues that are under the jurisdiction of the Ministry of Defense and the Intelligence Service (Article 37 of the Act "On the National Assembly"). In addition, ad hoc committees may be set up if necessary.
The judicial system is represented by the Supreme Court, Courts of Appeal, District Courts and the Family Court. Article 103 of the Constitution proclaims the independence of judges and defines the guarantees of independence. It should be noted that the term of office of members of the Supreme Court is limited to six years. The question of the constitutionality of normative acts is decided by the Constitutional Court, consisting of nine judges appointed by the President, with three candidates proposed by the Parliament, and three more by the Chairman of the Supreme Court, the rest are determined by the President himself.
In Art. 119 The Constitution establishes that the economic structure of the Republic of Korea is based on respect for the freedom and conscious initiative of enterprises and individuals in the field of economy. But the state reserves the right to "regulate and coordinate economic issues in order to improve the balance of growth and stability of the national economy, ensure the correct distribution of income to prevent market dominance and abuse of economic power, and to democratize the economy through the harmonization of relations between subjects."
According to the method of change, the Constitution of the Republic of Korea of 1988 is among the rigid ones. The following procedure for its modification is envisaged: proposals for amendments may be proposed either by the President or by a majority of the members of the National Assembly. Approval of the amendments submitted for discussion requires a qualified majority of 2/3 votes within 60 days from the date of submission for discussion. After approval in Parliament (no later than 30 days), the amendments are submitted to a national referendum and must be approved by a majority vote of citizens (more than half), subject to the participation of more than 50% of citizens eligible to vote.
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