The Judicial Enforcement of Socio-Economic Rights in South Korea

2019 ◽  
Vol 12 (3) ◽  
pp. 819-836
Author(s):  
Wonil Cha

Abstract Socio-economic rights are regarded as an indispensable foundation of substantial freedom. At the same time, the embodiment of socio-economic rights in the Constitution is generally associated with concerns about their quality as a fundamental right and their judicial enforcement. The South Korean Constitution upholds the principle of the welfare state in the preamble, the fundamental social rights of Articles 31 to 36 and Article 119 (2), providing the legal basis for the regulation and coordination of economic affairs by the State. The implementation of these constitutional norms and ideals was left largely to the political process beyond judicial review for many decades. As a result of the rapid economic development, the democratization process and the introduction of constitutional review in the last 30 years, the normative discussion of basic social rights, both on societal and legal level, has taken on a new life. This article examines the South Korean Constitutional Court’s approach to judicial review in the socio-economic field with due regard to this changing reality.

2009 ◽  
Vol 22 (2) ◽  
pp. 407-449 ◽  
Author(s):  
Michael Wabwile

International law on the protection and promotion of social and economic rights of the child binds states parties to respect, protect and secure these rights both in their own territories as well as to contribute to the programmes for such fulfilment in other countries in a strategy aiming at global implementation of these rights. This paper explores the legal basis for states‘ external obligations to support fulfilment of social and economic rights. It surveys inter alia the relevant treaty texts, explanatory resolutions of the UN General Assembly and statements in reports submitted by states parties to the UN monitoring committees, and argues that recent state practice and interpretation of human rights obligations confirms the extraterritorial obligations to support fulfilment of these rights. Since these are obligations to fulfil the rights of human beings in other countries rather than obligations to third states, they can be referred to as ‘diagonal obligations‘ to distinguish them from inter-state horizontal responsibility.


1996 ◽  
Vol 29 (1) ◽  
pp. 27-51 ◽  
Author(s):  
LARRY L. WADE ◽  
JIN WAN SEO

This article provides the first systematic account of the political orientations of women in the South Korean mass public. Drawing on data from the 1992 Korean Election Study, it is shown that Korean women are relatively more conservative ideologically, less interested in politics, more deferential in political discussions, more regime supportive, and less change oriented than men with respect to some aspects of public policy. Although other factors are involved, these differences are explained, in large part, by education. Education dominates social class, income, and other modernizing influences in this regard. As higher levels of education are reflected throughout the age distribution of women, more participatory and regime-critical orientations should become apparent.


2021 ◽  
Vol 8 (5) ◽  
Author(s):  
Nanang Nur Wahyudi ◽  
Nynda Fatmawati Octarina

Hak Politik dilindungi hukum, baik secara internasional maupun nsional. secara internasional, hak politik diatur Universal Declaration of Human Rights (UDHR) dan International Covenant on Civil and Political Rights (ICCPR). hak politik juga dilindungi konsitusi kita dan beberapa peraturan Perundang-Undangan lainnya, serutama Undang-Undang no 39 tahun 1999 tentang Hak Asasi Manusia. Adanya ketentuan yang merupakan syarat untuk mencalonkan diri pada pemilihan yang jelas membatasi bahkan meniadakan hak seseorang untuk ikut serta dalam menggunakan hak azasinya. Hal ini jelas merupakan pelanggaran terhadap hak azasi seseorang, yang dalam hal ini hak politik yang dimiliki oleh seorang mantan narapidana khususnya pada kasus korupsi. Apabila kita mencermati ketentuan UUD 1945, maka seorang mantan narapidana juga sebagai warga negara yang memiliki hak politik yang sama dengan warga negara lainnya. Hak Uji materiel terhadap peraturan yang  bertentangan dengan Undang-Undang Dasar 1945, maka kewenangan hak menguji ada pada Mahkamah Konstitusi (MK). Putusan Mahkamah Konstitusi memberi kepastian hukum bahwa seorang mantan Narapidana kasus korupsi masih diperbolehkan untuk mencalonkan diri pada pemilihan kepala daerah karena mantan narapidana masih memiliki hak politik sebagai warga negara. Untuk dapat mencalonkan diri pada pemilihan kepala daerah, maka mantan narapidana setelah melewati masa 5 (lima) tahun  selesai menjalani masa hukuman dan telah kembali kepada kehidupan masyarakat sebagaimana kehidupan masyarakat lainnya. Menghormati hak politik mantan narapidana kasus korupsi sebagai pengakuan terhadap hak azasi manusia dalam negara Republik Indonesia yang merupakan hak konstitusional yang diatur dalam UUD Tahun 1945. Kata Kunci : Narapidana, Judisial Review, Hak, Putusan Mahkamah Konstitusi ABSTRACTPolitical rights are protected by law, both internationally and nationally. Internationally, political rights are regulated by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Political rights are also protected by our constitution and several other laws and regulations, especially Law No. 39 of 1999 concerning Human Rights. There is a provision which is a requirement to run for election which clearly limits and even negates a person's right to participate in exercising their human rights. This is clearly a violation of a person's human rights, which in this case the political rights of an ex-convict, especially in cases of corruption. If we look at the provisions of the 1945 Constitution, an ex-convict is also a citizen who has the same political rights as other citizens. The right to judicial review of regulations that are contrary to the 1945 Constitution, the authority of the right to examine lies with the Constitutional Court (MK). The Constitutional Court's decision provides legal certainty that a former convict in a corruption case is still allowed to run for regional head elections because ex-convicts still have political rights as citizens. To be able to run for regional head elections, ex-convicts after passing through a period of 5 (five) years have finished serving their sentence and have returned to community life as other people's lives. Respect the political rights of ex-convicts of corruption cases as an acknowledgment of human rights in the Republic of Indonesia which are constitutional rights regulated in the 1945 Constitution. Keywords: Prisoners, Judicial Review, Rights, Constitutional Court Decisions


Author(s):  
Yvonne Tew

This chapter explores the role of courts and how judicial review operates in practice within the wider political context of Asian states historically dominated by consolidated political power. Judiciaries in Malaysia and Singapore are empowered by their written constitutions to invalidate legislation and executive actions for rights violations. Yet these Asian courts have traditionally adopted an insular, rigidly formalistic approach toward constitutional review, marked by extensive deference to the political branches, stridently rejecting notions of implied constitutional principles or basic structures. This chapter consider why. Constitutional adjudication in practice is inextricably bound to constitutional politics. Courts facing a dominant political party operate within a challenging environment for exercising strong judicial review. In the 1980s, the government’s aggressive backlash to judicial decisions with which it disagreed resulted in constitutional crises in Malaysia and Singapore. Chastened, the courts retreated to a subdued position toward constitutional review. Over the next two decades the Malaysian apex court refrained from invalidating any federal statute, while its Singaporean counterpart has not once struck down any law. Recent displays of assertiveness by the Malaysian Federal Court, however, show signs of a reinvigorated judiciary. The chapter tells the story of the courts’ rise, fall, and uneven journey toward constitutional redemption in these Asian democracies.


Author(s):  
Jack M. Balkin

The cycle of polarization and depolarization affects the political supports for judicial review. When politics is depolarized, politicians tend to let judges handle basic constitutional questions so that politicians can fight over the spoils of everyday politics. Judicial review tends to enforce the values of national political elites, especially against state and local governments. When the country is polarized, however, elite consensus evaporates. Political elites disagree about everything, so judicial review cannot do the same work. Instead, judicial review allows polarized political elites to win victories they can no longer win in the political process. As legislative politics becomes mired in polarization, the judiciary becomes an ever more important venue for achieving policy victories. This increases the urgency and bitterness of partisan fights over judicial appointments. Strong polarization encourages the parties to engage in constitutional hardball to secure ideologically aligned judges and prevent the other party from appointing judges.


1997 ◽  
Vol 14 (2) ◽  
pp. 39-68 ◽  
Author(s):  
Stephen Davies

The history of the welfare state is not only or even primarily a story of men and measures but also one of concepts and social ideals. Over the last hundred and twenty years or so, the body of policies, rules, and practices which we collectively term the welfare state has become the most prominent feature of politics and state activity in every developed country. This reflects not only institutional and procedural pressures on the political process during this period, but also the gradual permeation (to use a term employed by one prominent advocate of the welfare state) of all parties and arguments by a particular conception of welfare which has determined and limited the range and terms of debate. Both theoretical debate and concrete measures reflect pervasive assumptions and generalized arguments about the nature and content of collective and individual welfare, their preconditions, and their consequences.


1996 ◽  
Vol 90 (4) ◽  
pp. 794-812 ◽  
Author(s):  
Charles Cameron ◽  
David Epstein ◽  
Sharyn O'Halloran

Majority-minority voting districts have been advanced as a remedy to the underrepresentation of minority interests in the political process. Yet, their efficacy in furthering the substantive goals of minority constituents has been questioned because they may dilute minority influence in surrounding areas and lead to an overall decrease in support for minority-sponsored legislation. Thus, there may be a trade-off between increasing the number of minority officeholders and enacting legislation that furthers the interests of the minority community. Using nonlinear estimation techniques, we simulate the districting strategies that maximize substantive minority representation, and find that such a trade-off does exist. We also find that, outside of the South, dividing minority voters equally across districts maximizes substantive representation; inside the South the optimal scheme creates concentrated districts on the order of 47% black voting age population. In addition, minority candidates may have a substantial chance of being elected from districts with less than 50% minority voters.


2007 ◽  
Vol 7 (1) ◽  
pp. 61-92 ◽  
Author(s):  
Daniel A. Pinkston

South Korea's economic takeoff in the 1960s triggered a scholarly debate over the causes behind its economic growth. Neoclassical economists and “statist” scholars focused on government policies toward the industrial sector, but as this article shows, they have neglected to consider the political economy behind the government's targeting of the agricultural and livestock sectors for export promotion. In fact, the South Korean government's support of export-led growth—aimed at the rural sector as well as industry—transformed the nation's agricultural and livestock institutions from instruments of development and export promotion into protectionist mechanisms. This article discusses how complete market liberalization would have resulted in more efficient resource allocation and reveals how political considerations affected the institutional arrangement in the South Korean countryside and the subsequent liberalization of agricultural and beef markets.


2018 ◽  
Vol 2 (2) ◽  
pp. 50-63
Author(s):  
Yuichiro Tsuji

This study analyzes the €ght between the Japanese judiciary and legislature. In Japan, under the ex-Eugenic Protection Act, disabled people were obligated to undergo sterilization procedures for about 20 years. This surprising Act was established in 1948 and enabled doctors to sterilize people in order to eliminate hereditary diseases; they could also perform this procedure on physically or developmentally disabled people without their consent. The 2016 Committee on the Elimination of Discrimination against Women advised that research and compensation is urgent and necessary, but the government stated that it was a legal medical operation, and no compensation was necessary. Even under concrete judicial review, the judiciary in Japan may exercise its power to provide remedies for minorities who cannot amend statutes in the political process, or their constitutional rights will be infringed upon. is study argues that even concrete judicial reviews work to prevent serious damage before it occurs. This study will use a legal approach to review the first voting rights decision, as well as several decisions that are relevant to families in Japan. Under a concrete judicial review of the Japanese constitution, a plaintiff needs to bring a dispute in law to the court and allege that the statute or administrative disposition infringes on their human rights as provided for in the constitution. If there is no statute in the case, it is very difficult for a plaintiff to compel the legislature to pass the statute. If the legislature does not function well, the judiciary is obligated to find a way to encourage the legislature or the government to provide a remedy. The judiciary cannot compel the legislature, but may show some of the steps that it follows in its decisions.


2013 ◽  
Vol 14 (12) ◽  
pp. 2249-2263 ◽  
Author(s):  
Mark Tushnet

At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.


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