Korean Association of International Association of Constitutional Law最新文献

{"title":"Protecting the Human Rights of Climate Refugees- Focusing on the Principle of Non-Refoulement","authors":"Sun-hee Kim","doi":"10.24324/kiacl.2022.28.2.127","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.2.127","url":null,"abstract":"The global community is facing extreme weather events due to climate change and environmental degradation. There are alarming reports that the number of environmentally displaced persons will increase exponentially. However, there is no internationally agreed terminology or definition regarding people who have left their homes due to environmental reasons. There are differing opinions regarding whether these people are persecuted, and thus can be entitled to a refugee status under the 1951 Refugee Convention. \u0000Despite the controversy, international agencies including the UN have proposed ways to protect people displaced from their homes due to environmental reasons via international refugee law and international human rights law. In particular, in 2020, the UN Human Rights Committee in Ioane Teitiota v. New Zealand case adopted the view that people must not be sent back to countries where there is a real risk of irreparable harm to their right to life upon return to their home countries, including torture, ill-treatment and other serious human rights violations, which will trigger the the obligation of non-refoulement on States. This decision is hailed as a landmark decision that opens up the road to protect people whose life is threatened due to climate change. \u0000Although UNHRC’s decision is not binding in nature, it has indeed influenced courts in other countries including the Italian Supreme Court and Bordeaux Court of Appeals. \u0000Climate change and environmental crisis is no longer a localized issue, and is happening simultaneously all around the world. Korea is no exception. Despite the fact that Korea is also a signatory to the Paris Agreement, 1951 Refugee Convention and the International Covenant on Civil and Political Rights, there have been little discussion on this topic. The UN Human Rights Council has recently recognized that having a clean, healthy and sustainable environment is a human right. Against this backdrop, Korea, as a responsible member of the international community that upholds human rights must start drawing up policies to accommodate environmentally displaced persons.","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117257623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Abortion Law Debate in America- How Did Conservative Lawyers Overturn Roe v. Wade?","authors":"Jaewan Moon","doi":"10.24324/kiacl.2022.28.2.1","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.2.1","url":null,"abstract":"On June 24, 2022, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion, which had been upheld since Roe v. Wade in 1973. Roe, overruled by Dobbs, had represented constitutional revolution led by liberal Justices starting from the Warren Court. Conservative lawyers have tried to put an end to judicial activism since early 1980s. This paper reviews the conservative judicial movement in terms of constitutional interpretation as well as social movement. Originalism, conservative theory of constitutional interpretation based upon the text of the Constitutional and original meaning of the text, has been developed to criticize the Warren and Burger Court’s decisions of making constitutional rights based upon a theory of living constitutionalism. Originalists argue that incorporation of current values is the obligation of the representative, not the job of the court. In Dobbs the Supreme Court delivered an opinion that Roe was egregiously wrong and on a collision course with the Constitution. Six Justices in majority opinion in Dobbs are members of, or otherwise affiliated with the Federalist Society. The Society, which was founded to promote conservative and libertarian beliefs such as limited government and judicial restraint in 1982, has grown to be the most influential legal network. Though the Society is accused of making the Court politicized, what we as foreign scholars should learn from the Society is the intellectual culture that the Society is focusing on. The Society has accumulated intellectual capital by way of reasoned debate and robust discussion.","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131133412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Exercise of Duty to Act in Constitutional Complaint against Administrative Omission","authors":"Hwanghee Lee","doi":"10.24324/kiacl.2022.28.2.67","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.2.67","url":null,"abstract":"The constitutional complaint's subject matter includes exercise and non-exercise of governmental power. This paper examines the issue of exercising duty to act as the legal prerequisites to constitutional complaints regarding the non-exercise of governmental authority. \u0000In the paper, the issue regarding the exercise of the duty to act is divided into the issue of whether to exercise and the timing of exercise. Whether to exercise is not a subject of a mere factual judgment but a normative judgment. Since the judgment criteria of the Constitutional Court on the exercise of duty to act significantly affect the level of the government's exercise of the duty to act afterward, it was considered that the judgment on the exercise of the duty needs to be made practically following the purpose of the system of a constitutional complaint. \u0000A greater interest in this paper lies in the issue of the timing of exercise. The kernel of the timing issue was how to judge when the duty to act was exercised after the omission had continued for a considerable period of time and the violation of fundamental rights had already occurred in reality. Firstly it can be said that there is no non-exercise of governmental power. This is the method currently taken by the Constitutional Court. However, this logic has a problem in that it is difficult to identify the fact that the violation of basic rights which has already occurred is concealed. This means that, unlike in the case of the exercise of governmental power, the objective function of the constitutional complaint is weakened in the case of the non-exercise. \u0000From the point of view of the applicant, there is also the problem that the possibility of a ruling of unconstitutionality would be reduced. This issue can be treated similarly to the approach that, in a constitutional complaint against the exercise of governmental power, where the act is terminated, justiciable interests should be denied, yet the interests of review can be recognized exceptionally. \u0000Finally, from this standpoint, the 2012 Heonma 939 decision was reviewed. It dismissed the request for adjudication, as it was deemed that the prerequisite of the non-existence of governmental power was not met by acknowledging the exercise of the duty to act. However, in this case, the duty to act seems to have been exercised after the omission had continued for a considerable period of time. If that had been the case, it would have been highly probable that the decision to confirm the unconstitutionality was pronounced.","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116222048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Debates over Constitutional Interpretation in Dobbs Case","authors":"Sang-Hyeon Jeon","doi":"10.24324/kiacl.2022.28.2.31","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.2.31","url":null,"abstract":"In Dobbs Case, the U.S. Supreme Court(hereinafter “the Court”) ruled that abortion was not a fundamental right guaranteed by the Constitution. The Dobbs Case contains debates on fundamental and important issues raised in constitutional interpretation. \u0000Interpreting the “liberty” of Due Prcess Clause, the Court emphasized the text and history at the time of enactment of the 14th Amendment. That approach is similar to so-called originalist interpretation. On the other hand, the dissenting opinion argues that the Constitution has steadily developed through important constitutional principles, American history and tradition, and the gradual evolution of the Court’s precedents. \u0000Several crticisms of originalism are equivalent to the Court’s opinion. \u0000The Court overruled Roe and Casey on the ground that the Roe was egregiously wrong from the start, while the dissenting opinion stated that the Court violates the principle of stare decisis and the rule of law for overruling Roe even though there has been no legal or factual change except for the change in the composition of the Court. \u0000Though the fact that Roe has been consistently challenged over the past 50 years shows that Roe is not so-called super precedent, it also shows that Roe has been repeatedly confirmed as a good precedent. Overruling Roe means abolishing a fundamental right that has been recognized so far, not recognizing a new fundamental right or expanding the scope of a existing fundamental right. In this regards, the Court should have provided a stronger justification for overruling Roe. \u0000The Court held that it had no authority to determine the issue of abortion because the Constitution is neutral on abortion, and that the resolution of this issue should be left to the people and their elected representatives. The Court is relying on merely a majority-ruled democracy, and it is inconsistent with another important concept of democracy, constitutional democracy that requires constitutional protection of the minority from the tyranny of the majority.","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"100 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134519187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Problems and Improvements of Mongolia’s Governmental Structure- Focusing on the Checks and Balances between the Parliament, the President and the Cabinet","authors":"Battsengel Batsaikhan, Gyung-Chul Park","doi":"10.24324/kiacl.2022.28.2.95","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.2.95","url":null,"abstract":"2022 is the 30th anniversary of the implementation of the 1992 Constitution, which first adopted the principles of free democracy and the rule of law in Mongolia's constitutional history. Mongolia is in the process of realizing a liberal democracy and a rule of law based on the 1992 Constitution. \u0000However, Mongolian semi-presidential government system, which the current Mongolian constitution adopted, has various political or legal problems in the relationship between the president and the national parliament, and between the president and the prime minister and the cabinet, and between the national parliament and the prime minister and the cabinet, To solve this problem, the national parliament amended the Constitution twice, in 2000 and 2019. \u0000The purpose of this study is to review the constitutional problems of the distribution of powers between the national parliament, the President, the Prime Minister and the Cabinet, and the problems of checks and balances system in the power structure of the 2019 amended Mongolian Constitution, and is to suggest improvement measures that can realize mutual checks and balances among powers. \u0000In order to consider these issues, the process and contents of the constitutional amendments in 2000 and 2019 were first reviewed (II). In chapter III, we reviewed how the national parliament, the President, and the Cabinet are formed and state power is distributed in the current Mongolian constitution. In chapter IV, we reviewed checks and balances system in the 2019 amended Mongolian Constitution was examined. In chapter V, we reviewed the problems in how to form the National Assembly, the President, and the Cabinet and how to distribute powers among them in accordance with the principle of separation of powers and suggested several improvement measures. \u0000Finally, in chapter VI, the implications of Mongolia's attempts to solve them for Korea are examined.","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133767314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of the Originalism’s Interpretation of the Amendment VI of the U.S. Constitution Focusing on the Discussion on Whether the Constitution Approves Non-Unanimous Verdict System in Criminal Jury Trial","authors":"Jonghyun Park","doi":"10.24324/kiacl.2022.28.1.185","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.1.185","url":null,"abstract":"","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123615743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional problems of a naturalization oath Focus on the ‘oath of citizenship’ under the Nationality Act","authors":"H. Kwon","doi":"10.24324/kiacl.2022.28.1.89","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.1.89","url":null,"abstract":"","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129858168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federal President in the German Weimar Constitution On the Occasion of the 100th Anniversary of the Weimar Constitution","authors":"Seog-Yun Song","doi":"10.24324/kiacl.2022.28.1.1","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.1.1","url":null,"abstract":"","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"201 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115891972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is Article 21, Paragraph 4 of the Constitution alive or dead?","authors":"Seung Sun Lee","doi":"10.24324/kiacl.2022.28.1.117","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.1.117","url":null,"abstract":"","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"233 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131599046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ist das Amtsenthebungsverfahren für Richter im Ruhestand gerecht? kritische Anmerkungen zur 2021 Hunna 1 Entscheidung von 2021.10.28. des koreanischen Verfassungsgerichts","authors":"Y. Chang","doi":"10.24324/kiacl.2022.28.1.155","DOIUrl":"https://doi.org/10.24324/kiacl.2022.28.1.155","url":null,"abstract":"","PeriodicalId":322578,"journal":{"name":"Korean Association of International Association of Constitutional Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125283238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}