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A Study on Parliamentary Elements in the Government Structure of the Current Constitution of Korea

  • DONG-A LAW REVIEW
  • 2009, (44), pp.37-78
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Manhee Jeong 1

1동아대학교

Candidate

ABSTRACT

Except for a short period for the Second Republic under the parliamentary government, the Korean Constitution has primarily taken the form of presidentialism since its adoption in 1948. However, the government structure under the Constitution has had such a significant amount of parliamentary elements that it could be labeled as a mixture of both constitutional systems. Such a hybrid form of governments since its original adoption of the Constitution was simply a coincidental product of compromises between conflicting political groups and their interests, not based upon a reasonable resolution of necessary debates and studies. For that reason, the governmental structure under the Korean Constitution has built-in limitations as a make-shift compromise rather than well thought- out frames of the democratic government embodied on political objectives, theoretical bases and justifiable purposes. Those parliamentary elements that have been grafted to the presidential government were not to be functionally co-ordinated with the presidentialism; they in fact operated in dysfunction against the democratic advancement. However, certain elements of the parliament system have provided on the other hand convenient tools for a check and balance over the presidential powers. The recurrent controversies over the constitutional changes in the government structure are recently intensified again in the political fronts of Korea. Any change in the Constitution will require in-depth studies on the problems existing in the current government structure, which include such parliamentary elements that are embodied in the Constitution. My views on the constitutional reform on the government structure are focused primarily on the following parliamentary elements that exist in the Constitution, assuming that the basic form of the presidentialism thereunder will remain intact: (1) As a principle, we need to keep those parliamentary features that function well for the purpose, while those with dysfunction should be changed. Accordingly, the power of the executive to submit bills and the executive membership in the Assembly should be abolished as they tend to be used in support of usurpation of the executive powers. On the other hand, the legislative power of vote of non-confidence with respect to the Prime Minister and/or a cabinet member, which operates to serve as a check and balance against the executive, should be kept and strengthened. (2) We also need to keep the office of the Prime Minister as a part of the executive branch of the government for the historical as well as functional considerations. Furthermore, the constitutional power of the Prime Minister to recommend appointment or dismissal of cabinet members should be strengthened by giving more weight to the prevailing interpretation of the constitutional verbiage. In addition, it appears to be desirable that more constitutional practices and precedents be built and accumulated in support of a stronger position and more active roles of the Prime Minister under the Constitution. (3) The Constitutional reform should be limited to a minimum and gradual change, if at all. I oppose to any constitutional change that involves an outright abolition of the current presidentialism or adoption of a brand new constitutional system from another country. Any changes to the government structure should be partial and gradual, and should be based on a reasonable consensus from the historical and poli-cultural perspectives of the general populace.

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