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The constitutional meaning and value of 'due process of law' in korean constitution

  • Public Land Law Review
  • Abbr : KPLLR
  • 2012, 56(), pp.505-526
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Hwan Myoung Pyo 1

1제주대학교

Accredited

ABSTRACT

Korean constitution has adopted the due process principle in 1987 that is one of domination principles of English-American law system. Due process principle is provided on the fifth and fourteenth Amendment of U.S.A. United State Supreme Court makes the good use of 'due process principle' as the guideline of the most important interpretation to solve the problems of a imperfection of the system in the basic right on constitution of U.S.A.. United State Supreme Court has been developing the protection system of basic right through the expansion of application sphere and the list of basic right and the limit of restriction of basic right and embodiment of the criterion of judging from the interpretation of the Due process provision Korean constitution has prescribed ‘due process provision’ in article 12 paragraph 1 and 3 influenced from american constitution. But due process principle on korean constitution and american constitution is different from the content and system of provision. Therefore it has been occurring problems that apply the law theory of United State Supreme Court for interpretation ‘due process provision’ in korean constitution. This paper has investigated which limits exist for the application the interpretation theory of United State Supreme Court as interpretation of ‘due process provision’ of korean constitution. This paper has also investigated how apply ‘due process provision’ in korean constitution. Due process provision is adopted in Korean constitution and then Constitutional Court of Korea is opened. So Constitution Court of Korea has applied the law theory of United State America Supreme Court for interpretation ‘due process provision’ in korean constitution. This paper has indicated those problems of application of our constitution Court. This paper has also investigated why does Due process provision in korean constitution needs.

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