The Two Modes of Foreign Engagement by the Constitutional Court of Korea

2021 ◽  
pp. 1-18
Author(s):  
Soojin Kong
Keyword(s):  
Comparative Law ◽  
Constitutional Court ◽  
Rigid Structure ◽  
Foreign Law

Abstract The Constitutional Court of Korea (CCK) has engaged with foreign law and practices in two distinct manners. While the CCK has interacted with foreign constitutional adjudicatory organs outside the courtroom, it has also developed comparative law practices inside the courtroom. This article aims to examine the interaction between the CCK's two modes of foreign engagement. The chronological inquiry, substantiated by the interviews with former and current legal practitioners of the CCK, demonstrates the gap between the CCK's two modes of foreign engagement. The CCK's evolving extrajudicial activities have provided the repositories of information adequate for the deliberation of individual cases. However, the CCK's rigid structure for comparative law practices, which was established in its initial years to learn from traditionally influential jurisdictions, restricts these repositories from being fully utilised inside the courtroom. The CCK's failure to fully incorporate its developments in its extrajudicial activities into comparative law practices disallows the CCK to grasp an evolving picture of foreign constitutional adjudicatory organs.

Germany

2013 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
Supreme Court ◽  
Comparative Law ◽  
Case Law ◽  
National Origin ◽  
Constitutional Court ◽  
Legal Tradition ◽  
Foreign Law ◽  
Federal Constitutional ◽  
Federal Supreme ◽  
Domestic Case

The chapter deals with Germany. Although the German legal tradition is relatively open to non-mandatory legal inspiration, the sources of such inspiration are nonetheless generally limited to sources of national origin. The practice of three of the supreme federal jurisdictions, the Federal Constitutional Court, the Federal Supreme Court, and the Federal Administrative Court, discloses only sporadic passing references to foreign inspiration, typically within a larger block of citations of domestic case law or scholarship. References to foreign solutions serve as an additional supportive argument. In the German context, however, the limited quantity of direct uses of foreign law by courts should be weighed against the relatively rich comparative law scholarship.

scholarly journals Engaging Foreign Law: Not So Liberally

2019 ◽  
Vol 19 (75) ◽  
pp. 11-19
Author(s):  
Pierre Legrand
Keyword(s):  
Rule Of Law ◽  
Local Knowledge ◽  
Comparative Law ◽  
The Rule Of Law ◽  
Legal Thought ◽  
Foreign Law ◽  
Georgetown University ◽  
The Way

Taking its cue from a remarkable institutional initiative owing to the Georgetown University Law Center, this essay contests some of the key assumptions that have informed liberalism’s cosmopolitan turn. In particular, the argument addresses the way in which liberal legal thought has handled a doctrine widely known as “the rule of law”. The text challenges the universalizing drive having informed the dissemination of “the rule of law” and the attendant marginalization of culture in the form of the decredibilization of local knowledge. The paper suggests that “comparative law” can offer a valuable opportunity for the liberal self to revisit its uniformizing ideological commitments  — although not “comparative law” of the mainstream brand.

scholarly journals IL DIRITTO SOCIETARIO TRA DIRITTO COMPARATO E DIRITTO STRANIERO

2013 ◽  
Author(s):  
Giuseppe B. Portale
Keyword(s):  
Comparative Law ◽  
Corporate Law ◽  
Private Company ◽  
General Role ◽  
Foreign Law ◽  
Specific Regulation ◽  
The One ◽  
Substantive Law ◽  
Theoretical Foundations

The article tackles the issues related to the use of comparative law a source of substantive law in a specific legal system, with specific regard to corporate law. Expanding on previous studies on the general role of comparative law in the framework of sources of law (§ 1), the study argues that the comparative argument may be used to regulate purely domestic cases and as well as a play a crucial role in interpreting internal laws (§§ 1.1, 1.2) and analyzes the theoretical foundations of such process (§ 1.3) as well as the problems caused by the application of foreign law by a domestic judge (§ 2). Subsequently, two examples of such usage of the comparative legal argument are provided, drawn from the Italian corporate law experience (§ 3): on the one hand, the introduction of a specific regulation of a simplified private company (società a responsabilità limitata semplificata), representing a circulation of German (Unternehmergesellschaft- UG) and Belgian (société privée a responsabilité limitée starter) models (§ 3.1); on the other hand, the use of comparative law by in the interpretation of the organization structure in the Italian dualistic system (§ 3.2).

Parker School Summer Program in Foreign Law

1962 ◽  
Vol 56 (1) ◽  
pp. 160-161
Author(s):  
Willis L. M. Reese
Keyword(s):  
Comparative Law ◽  
Summer Program ◽  
Columbia University ◽  
University Campus ◽  
Foreign Law

The Parker School of Foreign and Comparative Law will hold its sixth Summer Program in Foreign Law on the Columbia University campus during the period from June 4 through June 29, 1962.

scholarly journals Universalismo y particularismo en el Tribunal Constitucional. Sobre su uso (y abuso) de los precedentes extranjeros

2018 ◽  
pp. 530
Author(s):  
Ángel Aday Jiménez Alemán
Keyword(s):  
Theoretical Analysis ◽  
Comparative Law ◽  
Constitutional Court ◽  
Legal Scholarship ◽  
Accepted Practice

El siguiente trabajo ofrece elementos con los que analizar una práctica pacíficamente aceptada de nuestro Tribunal Constitucional, escasamente aborda por la doctrina española, pero no por ello menos contradictoria: El uso de Derecho comparado, y, específicamente, de precedentes extranjeros. Se realiza un análisis sistemático tanto empírico como teórico de las resoluciones en las que ha sido utilizado como parte de los fundamentos jurídicos.This paper provides elements to analyse the peacefully accepted practice of using comparative law by the Spanish Constitutional Court. This paper is focus on the use of foreign precedents. It is a contradictory practice although still not explored by the Spanish legal scholarship. In this sense, this paper contributes with a systematic empirical and theoretical analysis of the Spanish Court’s decisions where foreign precedents are referenced at the legal groundings

Comparative Law and Legal Culture

2019 ◽  
pp. 709-733 ◽  
Author(s):  
Roger Cotterrell
Keyword(s):  
Comparative Law ◽  
Legal Culture ◽  
Legal Environment ◽  
Important Place ◽  
Foreign Law

The idea of legal culture has had an important place in major recent debates about the nature and aims of comparative law. The idea of legal culture entails that law should be treated as embedded in a broader culture of some kind. This culture may, but need not necessarily, be seen as wider than the lawyer’s or lawmaker’s professional realm of law. Often, however, conceptions of legal culture encompass much more than this professional juristic realm. They refer to a more general consciousness or experience of law that is widely shared by those who inhabit a particular legal environment, for example, a particular region, nation, or group of nations. Culture appears fundamental—a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparatist must pass so as to have any genuine access to the meaning of foreign law.

scholarly journals Expert Opinions on Foreign Law in Court: Applied Comparative Law in the Munich Institute for East European Law

2020 ◽  
Vol 1 (1) ◽  
pp. 111-130
Author(s):  
Herbert Küpper
Keyword(s):  
Basic Research ◽  
Comparative Law ◽  
European Law ◽  
Domestic Court ◽  
Legal Research ◽  
East European ◽  
Expert Opinions ◽  
Foreign Law ◽  
The Law

Comparative law has many facets. It often consists of basic research for academic purposes, but it may have a practical side as well. A genuine combination of basic and applied comparative legal research are expert opinions on foreign law for adomestic court. The expert researcher has to fully comprehend the foreign law on the books as well as in action, and has to be able to translate this foreign law into the legal background of the domestic court and into the procedural setting of the law-suit at hand. Taking the ‘Munich Institute for East European Law’ as an example, this essay describes the continuous basic research as a prerequisite for expertise on foreign law, as well as the practice of writing expert opinions for courts of law and authorities with regard to the law of the formerly socialist countries in Europe.

Part 3 Institutional Control of Constitutionalism, 3.3 The Turkish Constitutional Court as Defender of the Raison d’Etat ?

2012 ◽  
Author(s):  
Can Osman
Keyword(s):  
Power Relations ◽  
Comparative Law ◽  
Democratic Legitimacy ◽  
Constitutional Court ◽  
Institutional Control ◽  
Democratic Culture ◽  
Islamic World ◽  
Special Place ◽  
Raison D’État ◽  
Turkish Constitution

This chapter examines the power relations creating the Turkish Constitution and the constitutional court, the structure of this court, and judicial precedents it has set. It addresses questions such as: Is it sufficient to base the constitution simply on “power relations,” or if it is also necessary to ensure its democratic legitimacy? Will the constitution and the structure of Turkey's constitutional judiciary, with its special place in the Islamic world regarding societal pluralism and democratic culture, be able to provide a positive comparative law paradigm for countries trying to democratize?

Sign in / Sign up

Export Citation Format

Share Document