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A Study on the Dual Executive System - A Critical Look into the Constitutional Revision for the Dual Executive System -

  • DONG-A LAW REVIEW
  • 2011, (52), pp.143-187
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Manhee Jeong 1

1동아대학교

Accredited

ABSTRACT

The discussion about constitutional amendments has recently intensified in the country for the past few years. The National Assembly under the government of President Lee Myung-Bak led the discussion on constitutional amendment after President Roh Moo-Hyun proposed the so-called one point amendment, which is an amendment on the presidential terms and election timings, on January 2007. In 2008, the Advisory Commission on Constitutional Revision under the immediate control of the Speaker of the National Assembly was organized, and they published a research report on August 2009. This research report proposed the dual executive system of the French government as the first tentative plan. A part of the political authority approved the dual executive as a government system of decentralized power. There were also discussions among academics about constitutional amendment variously proposing constitutional revisions including the dual executive system, the U. S. presidential system, and the parliamentary cabinet system. From the writer's viewpoint that the system of government should be gradually and partially revised, the purpose of this paper is to develop an argument against the proposal to introduce the dual executive system of France, which means to select a new system of government. This paper looks into the rationales of a dual executive system and the government system of the Constitution of Weimar Republic, which provides a background in establishing the dual executive system. This study further analyzes the principles and the practical applications of the government system of France’s Fifth Republic. With a background on their experience with failure in the classical parliamentary cabinet system during the period of the Constitutions of Third and Fourth Republic in France, the dual executive system of the Constitution of France’s Fifth Republic has a President who is directly elected by the people and can exercise substantial power with democratic legitimacy. The Prime Minister appointed by the President should be abdicated if he/she does not gain the confidence of the Parliament through a vote of censure. In the dual executive government system of France, which combines the parliamentary cabinet system and the presidential system, the substantial powers in the Constitution are distributed between the President and the Prime Minister because of the material duality between the administrative branches. It causes a serious problem, which is the conflict between the President and the Prime Minister, because the distributional standards of powers are vague. Moreover, if the traditional trend of the multiparty system in France occasionally gives rise to distinguish the party in power from the majority party of the Parliament, the Presidential Power to appoint the Prime Minister would be restricted, therefore the President has no alternative but to appoint the leader of a nongovernment party and the abnormal phenomenon called ‘cohabitation’ takes place. In the light of these problems, particularly the conflict between the President and the Prime Minister and the occurrence of ‘cohabitation’ caused by the dual separation of administrative powers, it could be expected that more serious problems would emerge if the dual executive is introduced in the present state of Korea with the backwardness of its Parliamentary Democracy, politics, culture, and the level of public awareness. There are a few skeptical viewpoints in introducing the dual executive system as a plan to cope with the evils of centralization of power and the successful stabilization of the government system because the parliamentary cabinet system was rarely used in the constitutional government of Korea. Also, it must also be taken in to account that adverse effects might arise such as new internal conflicts among the executives and unrest and paralysis on the conduct of state affairs. In conclusion, there is a necessity for a careful analysis in enforcing the dual executive system versus abolishing the presidential system in amending the current government structure. The suitable government system is being discussed with the purpose of reforming the present system because the dual executive system may have various implications to various cultural conditions and historical backgrounds. Hence, it is necessary to more completely scrutinize and study the theory and practice of the dual executive system before proposing to implement it.

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